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 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

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

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)

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