Wednesday, May 29, 2019

How did we get on a rocky path that led to an Alabama doctor facing a wrongful-death lawsuit for treating a miscarriage patient and possibly saving her life?



Nuttiness over abortion rights in Alabama did not begin with the state's recent passage of the most restrictive and unconstitutional anti-choice law in the nation. In fact, the atmosphere regarding reproductive rights for women has been toxic for decades. Birmingham has been the site of annual demonstrations, and the city has been the site of one of the nation's most notorious fatal bombings at an abortion clinic.

In fact, I was in the general vicinity of that bomb blast, as I wrote in a post dated Jan. 20, 2008, as the nation recognized the 35th anniversary of Roe v. Wade. From that post:

Reading about those activities took me back to the morning of January 29, 1998. I was sitting in my car reading the newspaper before going into work (at UAB) when I heard an explosion that seemed to come several blocks to the southwest. I thought perhaps there had been an accident at a construction site, and I remember thinking, "I hope no one got hurt."

I had been at work only a few minutes when word quickly spread that a bomb had gone off at the New Woman, All Women health clinic, which is three blocks south and two blocks west of where I had been sitting in my car. The clinic is probably less than 100 yards from Purple Onion, one of my favorite Southside lunch spots.

The blast killed police officer Robert Sanderson and critically injured nurse Emily Lyons. Thanks mainly to the remarkably alert actions of Jermaine J. Hughes, a student at nearby UAB (University of Alabama at Birmingham), authorities were able to track down Eric Robert Rudolph.

That was a scary morning, to be sure. If I had been a few minutes later on my journey, and taken a certain path to work, my car (with me in it) would have been in close range of fragments from the bomb. Perhaps just as scary is ongoing activity related to abortion in Alabama courts.

A December 2016 decision from the Alabama Supreme Court found that a physician could be subject to a wrongful-death lawsuit for treating a woman who, court records indicate, was having a miscarriage. The case is styled Kimberly A. Stinnett v. Karla G. Kennedy, M.D., and prominent Canadian and American OB/GYN Dr. Jen Gunter writes about it in a post at her blog dr.jengunter.com. Here is the background from a January 2017 post titled "An OB/GYN in Alabama treated a miscarriage. She’s getting sued for wrongful death":

Court documents tell us that on May 9, 2012 Kimberly Stinnett, a resident of Alabama, found out she was pregnant. Two days later, on Friday, May 11, Ms. Stinnett had abdominal cramping and fever and the OB/GYN covering calls, Dr. Kennedy, instructed her to go to the emergency room . Upon admission Ms. Stinnett reported that her last menstrual period was April 1, 2012, so she was approximately five weeks and 5 days pregnant. Her medical history was significant for 2 prior miscarriages and a prior ectopic pregnancy in 2010, which resulted in the rupture and removal of her left fallopian tube (salpingectomy).

An ultrasound in the emergency room revealed fluid in the endometrial cavity that “could be a gestational sac” but the court records do not describe this as definitive nor do they list the size. There was no yolk sac, fetal pole, or cardiac activity. Ms. Stinnett’s beta-hCG was 18,473. At this beta-hCG, there should have been a yolk sac. If there was an intrauterine pregnancy, the available evidence indicated it was not normal.

Dr. Kennedy was concerned about ectopic pregnancy or an inevitable abortion (an abnormal pregnancy destined to miscarry). Her patient had one of the biggest risk factors for ectopic pregnancy, a previous ectopic pregnancy. Failure to promptly diagnose and treat an ectopic pregnancy can cause severe blood loss and even death. If not expertly treated, it could also result in the loss of her one remaining fallopian tube which would require in vitro fertilization for any subsequent pregnancies.

In short, Stinnett's life was in danger, as was her ability to carry a normal pregnancy in the future. Dr. Kennedy conducted a laparoscopy and a dilation and curettage (D and C) to "confirm the intra-uterine placement of what the evidence suggested was a non-viable pregnancy. When pathology results were inconclusive, that meant a life-threatening ectopic pregnancy still was a possibility; it is possible for there to be a pregnancy in the tube and the uterus; this is called a heterotopic. Dr. Kennedy was concerned enough that she recommended methotrexate, a cancer drug and a recommended therapy for ectopic pregnancy.

Ectopic pregnancy
About three weeks later, Stinnett miscarried, and she eventually sued for wrongful death of her "pre-viable child." A trial-court judge in Jefferson County dismissed the claim, but the eight justices of the Alabama Supreme Court, including Tom Parker ("Roy Moore Lite"), reversed and allowed the wrongful-death claim to move forward. Here is how Dr. Gunter describes the medical evidence, as available in the court record:

With a beta hCG of 18,473 a yolk sac should have be seen on the initial ultrasound on May 11th. In fact, 99% of the time a yolk sac should be seen with a beta hCG of 17,716. The gestational sac wasn’t normal looking so with that pregnancy hormone level and the absence of a yolk sac it is pretty hard to conclude this pregnancy was viable. Remember the fetal pole cardiac activity bills? We often see cardiac activity at 6 weeks, so an irregular gestational sac at 5 weeks and 5 days by with no yolk sac is itself very abnormal.

I asked 3 reproductive endocrinologists what the chances of a pregnancy being normal with a beta hCG of 18,473 and no yolk sac, and they all looked at me like I was nuts.

In other words, the evidence was overwhelming that the pregnancy was non-viable, and Dr. Kennedy acted reasonably to save the mother from the dangers of an ectopic pregnancy. But the Alabama Supreme Court, twisting the law into all sorts of contortions, disagreed.

Here is a summary of the facts and legal issues from a post at jdsupra.com:

If an obstetrician’s negligence causes the miscarriage of a nonviable fetus—i.e., one that couldn’t live outside the womb–does the patient have a cause of action for wrongful death? In Alabama the answer is yes, according to a unanimous opinion by the state’s highest court.

Kimberly Stinnett alleged that two days after being informed by her OB that she was pregnant, she experienced severe cramping and fever and was seen in the ER by Dr. Kennedy, the OB on call. Stinnett reported that she had experienced two prior miscarriages and an ectopic pregnancy that resulted in removal of a fallopian tube. After testing, Kennedy administered methotrexate, a drug used to treat ectopic pregnancies by terminating them.

Three days later an ultrasound revealed an intrauterine pregnancy, which Stinnett’s OB said was failing as a result of the methotrexate. About four weeks after the ER visit, she miscarried. The fetus had never been viable, but there was a dispute as to whether it could have reached viability if not for the methotrexate.

How did we reach a point where treating a patient with a history of miscarriage and ectopic pregnancy -- a patient who again was in the midst of a troubled pregnancy, one that appeared to be non-viable -- could put a physician in legal jeopardy? Court documents suggest three factors are in play:

(1) State courts' longstanding desire to maintain congruence between the state's criminal homicide statutes and the civil Wrongful Death Act. The thinking is that both are designed to prevent homicide, so they need to be in alignment;

(2) A 2006 amendment to the homicide statutes (called the Brody Act), altering Alabama law to include an "unborn child" as a potential victim of homicide; (The federal Unborn Victims of Violence Act, which President Bush signed in April 2004, covers unborn victims of federal crimes.)

(3) A ruling in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), based on the Brody Act, holding that the Wrongful Death Act permits an action for the death of a pre-viable fetus.

The Alabama Supreme Court, in Mack v. Carmack, describes the process that turned an "unborn child" into a potential homicide victim -- and thus, the central figure in a wrongful-death lawsuit:

Section 6-5-391, Ala.Code 1975, entitled "Wrongful death of minor" ("the Wrongful Death Act"), provides, in pertinent part, that "[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person ..., the father, or the mother ... of the minor may commence an action."[3] § 6-5-391(a), 600*600 Ala.Code 1975. The issue before us in this appeal is the proper application of § 6-5-391(a).

Mack concedes that, in two decisions issued by this Court in 1993 concerning wrongful-death claims arising out of the death of a fetus, this Court held that no cause of action for wrongful death exists if the fetus was not viable at the time of death. See Gentry v. Gilmore, 613 So.2d 1241, 1242 (Ala.1993) (concluding that "the Wrongful Death Act does not provide a cause of action for the death of a nonviable fetus"); and Lollar v. Tankersley, 613 So.2d 1249, 1252 (Ala.1993) (concluding that "a cause of action for death resulting from a pre-natal injury requires that the fetus attain viability either before the injury or before death results from the injury"). Largely on the basis of a recent legislative enactment, Mack now asks this Court to overrule Gentry and Lollar.

In pertinent part, the so-called "Brody Act," Act No. 2006-419, Ala. Acts 2006, codified as Ala.Code 1975, § 13A-6-1, changed the definition of the term "person" in the article of the Alabama Code defining homicide offenses. Before its amendment in 2006, this article defined the term "person" as "a human being who had been born and was alive at the time of the homicidal act." § 13A-6-1(2), Ala.Code 1975. As amended by the Brody Act, § 13A-6-1(a)(3), Ala.Code 1975, now defines the term "person" as "a human being, including an unborn child in utero at any stage of development, regardless of viability."

In essence, the Brody Act started the ball rolling toward the Alabama Supreme Court's ruling in Stinnett, where a doctor faces possible liability for wrongful death in treatment of a miscarriage. That raises this question: Is the Brody Act sound law? An amended version of the Brody Bill, the one that was signed into law, can be found here -- and we see no sign that it is based on fact, science, legal precedent, or anything else of substance. It appears to be a piece of arbitrary legislation that has little or no legitimate purpose and was created mostly for political expedience. Former State Rep. Spencer Collier drafted the bill, and we found this in a report at saintpatrickcc.com:

Collier said that, starting July 1, it would be up to a prosecutor to prove a woman was pregnant and that the accused person injured or killed the child she was carrying.

He said a district attorney might try to use the Brody bill to prosecute someone for criminally negligent homicide or manslaughter if the person caused a traffic accident that killed an unborn child.

Not only would the law not apply in the case of legal abortions, it also would not apply to the mother. Sen. Rodger Smitherman, D-Birmingham, said he wanted that provision added to ensure that a woman who miscarried could not be prosecuted. It also would not apply to health care providers if an unborn child were injured or killed by medical care.

Collier's bill as first written would have applied to "an unborn child at every stage of gestation (in the uterus) from conception to birth, regardless of viability."

At Smitherman's request, that phrase was rewritten to apply to "an unborn child (in the uterus) at any stage of development regardless of viability."

Collier said he believed the new language had the same meaning as the original language. "I do think it accomplishes the same thing," he said.

But Smitherman said it would be up to a judge to decide whether the bill applied from conception. "I don't know what a judge would say," Smitherman said.

Clearly, the act had its origins in the notion that "life begins at conception," even though that is demonstrably untrue -- as should be apparent to anyone with a sixth grader's knowledge of human biology. Apparently, the Alabama legislators who approved the Brody Bill -- and former Gov. Bob Riley, who signed it into law -- lack that level of scientific knowledge.

That means the Brody Act, and its progeny, are very bad law, and we will show why in upcoming posts.

As for the Stinnett case, it was remanded to the trial court for further proceedings, and we have seen no updates in the press.


(To be continued)

14 comments:

Anonymous said...

Thanks for reporting on this case. I was not familiar with it, and the public needs to be made aware. Sounds like a travesty.

Anonymous said...

A doctor gets sued for likely saving the mother's life -- a would-be mother with a history of miscarriages and ectopic pregnancy? Unreal, but this is Alabama we're talking about.

Anonymous said...

This is pure political theater from Tom "Taliban" Parker. Why do voters in Alabama keep re-electing this fraud?

Anonymous said...

The way I read this, the Alabama Supreme Court sides 100 percent with the fetus (even a non-viable fetus) and 0 percent with the mother.

Anonymous said...

@8:24 --

We must remember the mother is just a "host."

Anonymous said...

I've read the decision in the Stinnett case, and I see no sign that the Alabama Supreme Court has any concern for the health of the mother.

Anonymous said...

It looks like Dr Kennedy in suggesting a pharmaceutical treatment to terminate the Ectopic pregnancy also terminated a 2nd intrauterine pregnancy. They could have terminated the Ectopic pregnancy via Laparoscopic surgery which may have given the intrauterine pregnancy a chance to survive.

The questions I have is did Dr Kennedy know of the 2nd pregnancy? Did she inform ms. Stinnett of the surgical option?

legalschnauzer said...

@9:24 --

I'm not sure about your claim that there were two pregnancies. Is that from Dr. Gunter's reference to a heterotopic pregnancy, which (as I understand it) involves a portion of the pregnancy contents being normally in the uterus and a portion being abnormally in the fallopian tubes. I believe, however, it still is one pregnancy, not two. And I don't recall seeing anything in the record that said Ms. Stinnett had a heterotopic pregnancy. Dr. Gunter just mentioned it as a relatively rare complication in difficult pregnancies.

You reference the possibility of laparoscopic surgery to terminate the ectopic pregnancy, but again, that seems to assume there was a heterotopic pregnancy with Ms. Stinnett, and I don't believe that was the case.

My research indicates laparoscopic surgery is an option for treating ectopic pregnancy, but a number of factors must be considered to determine if that is the best option. Medication (methtrexate) seems to be the preferred option for early ectopic pregnancies without unstable bleeding. It appears blood loss is a major consideration in all of this.

Anonymous said...

Your own highlight stated there was a 2nd pregnancy:

Three days later an ultrasound revealed an intrauterine pregnancy, which Stinnett’s OB said was failing as a result of the methotrexate. About four weeks after the ER visit, she miscarried. The fetus had never been viable, but there was a dispute as to whether it could have reached viability if not for the methotrexate.

It is also called a heterotopic pregnancy. A ectopic pregnancy and intrauterine pregnancy are different.

https://en.wikipedia.org/wiki/Heterotopic_pregnancy

Anonymous said...

A double pregnancy(an intrauterine and ectopic pregnancy), also known as a heterotopic pregnancy, is an incredibly rare event in a patient not using ovarian stimulants or having in-vitro fertilization with multiple fertilized embryos being implanted (as rare as 1:30,000 natural pregnancies). I am an emergency physician and have only cared for one such patient in my career.

It is correct that laparoscopic surgery is the definitive treatment option for ectopic pregnancy but it is usually reserved for someone having internal bleeding, unstable vital signs, or concern of imminent rupture of the fallopian tube. Exploratory laparoscopy most often results in the removal of the fallopian tube, and in this patient would result in her being unable to have natural pregnancies in the future (she already had one tube removed for a prior ectopic pregnancy). Methotrexate is the generally preferred option for stable ectopics (or clinically presumed ectopics) that are early gestation.

These are very difficult cases that involve decisions that are time-dependent. Often a patients' regular OBGYN physician is not available as patients may present at off-hours. This law will have the possible unintended consequences of making physicians question established treatment pathways (always involving detailed conversations about the risks and benefits of treatment options with the patient and always requiring their informed consent). It may also ultimately impact physician willingness to take emergency call or even go into specialties with high malpractice risks. Many OBGYNs are leaving OB as a practice and limiting themselves to GYN due to these issues. That then affects society as a whole.

legalschnauzer said...

@11:13 --

The highlighted section you reference does not say there was a second pregnancy.

I'm well aware that a heterotopic, ectopic, and intrauterine pregnancy are different from each other. I'm the one who spelled it out in the post.

So, what's your point?

legalschnauzer said...

@12:02 --

Thanks for an insightful comment that adds a great deal to the discussion here. I can only imagine how difficult these cases must be to handle, especially with time being a major constraint. The Alabama Supreme Court seems to be doing its best to make the cases impossible to handle.

Sorry to hear OB/SYNs are leaving the field, at least the OB part of it, because of issues such as these. What a huge loss to society.

Many thanks for taking the time to write.

e.a.f. said...

These laws, may well result in the deaths of women. In some Central American countries the law forbids women from having abortions. both Doctor and Patient can be sent to jail. the upshot, doctors sometimes refuse to treat women having miscarriages because they're afraid they'll be arrested for performing an unlawful abortion. Women die. My conclusion is the politicians of Alabama don't give a dam about women. they're good for fuck and filing and that's about all. Its time for women to assert their rights in Alabama or they may find the clocks and laws are turned back a 100 years or more.

What I find peculiar is Alabama has the death penalty. If some people believe life begins at conception and it can not be terminated, why is it o.k. to kill a fully formed human being?

legalschnauzer said...

e.a.f. --

The comment above @12:02 is very interesting. It's from an AL ER physician says quite a few OB/GYNs are leaving the field altogether or leaving the OB part and doing just GYN.