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Lawyers Agree that Asserting Fetal Suffering is a Viable Action

fetal pain and sufferingA recent court ruling on whether unborn twins experienced pain before their death has left the final decision up to the jury. Lawyers are now asserting that this type of claim could be actionable in the future.

Schmidt Kramer partner Scott Cooper said in a statement to The Legal Intelligencer that the decision will likely be addressed in auto accident claims and insurance carriers should be aware of these possible claims.

Lackawanna Court of Common Pleas Judge Terrence. R Nealon ruled in a medical malpractice claim that a jury should determine whether newborn twins suffered pain while in the womb.

Cooper contends that Nealon’s opinion is a guide to bypassing evidentiary motions from those seeking to have an issue tossed out before the trial begins. Cooper continued to say that he may soon look into developing claims for fetal pain and suffering.

Other attorneys who spoke with The Legal Intelligencer agreed that this may be something they will also investigate, however, such claims will likely only be applicable to a limited number of cases.

In this ruling, the case revolved around a doctor’s failure to diagnose and treat a woman’s pre-eclampsia while she was pregnant, which caused her to have a seizure. The seizure then led to shock, tachycardia and hemorrhaging which resulted in an emergency hysterectomy. The woman claimed her twins, who were at 33.4 weeks, suffocated and suffered pain.

The defense argued that asphyxia did not cause distress. However, the plaintiff’s expert witness said there is enough medical research contradicting the defense’s expert witness’s arguments.

In Pennsylvania, a fetus is considered viable at 24 weeks. In cases where a fetus is closer to the legal line if viability, it may be more difficult to prove the unborn child suffered any type of pain.

Courts will have to be careful about making these determinations and the topic must be handled delicately on all sides.