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Lawsuits & Litigation

When Does “Fetus” Equal “Person” in Wrongful Death Claims?

— October 22, 2015

A couple in Connecticut sued an OB/GYN specialist over the wrongful death of their 22-week-old fetus. The mother, Melanie Foster, was undergoing an IUD removal when the doctor punctured her fetal membrane. Ten days later, the fetus was born alive; however, it only survived two hours post-partum. The question in front of the court is whether the fetus had achieved personhood status such that it could be considered the victim in a wrongful death suit.

The seemingly age-old question of when life begins is making a return to the courtroom. This time, however, it’s not about abortion. It’s a wrongful death and malpractice suit that hinges on the personhood of the alleged victim. When does “fetus” equal “person” in wrongful death claims?

Melanie and Floyd Foster filed the suit in Connecticut. The Fosters were patients of Stamford doctor Corinne de Cholnoky, an OB/GYN specialist. The Fosters claim Dr. de Cholnoky wrongfully caused the death of their developing child when she punctured Mrs. Foster’s fetal membrane during a procedure to remove an intrauterine birth control device (IUD) in 2011.

The Foster’s fetus was born alive at 22 weeks, but only survived two hours post-partum. Both the birth and the death occurred 10 days after Dr. de Cholnoky’s procedure. In addition to the wrongful death claim, the Fosters are suing de Cholnoky for medical malpractice, claiming she was negligent because she didn’t determine whether Mrs. Foster was pregnant before performing the IUD removal procedure.

James Rosenbaum, de Cholnoky’s attorney, attempted to have the case dismissed on the grounds that wrongful death suits are permissible only in cases involving viable fetuses (those developed enough to live outside the womb). He and de Cholnoky both deny her negligence.

In support of his motion, Rosenbaum cited Roe v. Wade, the 1973 Supreme Court decision legalizing abortion. The Court determined in Roe that fetuses are not viable until the 22nd to 24th weeks. Judge Michael Kamp, the State Superior Court justice assigned to the case, denied Rosenbaum’s motion, allowing the case to move forward. Jury selection begins today in Bridgeport Superior Court. Rosenbaum intends to appeal Judge Kamp’s decision.


Judge Kamp stated an absence of specific Connecticut case law on the question of wrongful death suits filed when the live-born fetus was unviable. He pointed out that other state courts have been split on the issue.

“Where the doctors refer to the birth of a baby, its life and eventual death, one would conclude that the baby was a person, and that person died,” Judge Kamp wrote in his ruling. Both the Fosters’ and de Cholnoky’s hired medical experts stated that the fetus was born alive.

Judge Kamp cited a Connecticut Supreme Court decision, an appeal by a former death row inmate in 2010. In Robert Courchesne’s case, the court stated the “born alive rule” is the standard for both criminal homicide and civil wrongful death cases. In other words, the fetus becomes a person when it is born alive. This doesn’t bode well for de Cholnoky.

This isn’t the doctor’s first time in court, though. In 2008, de Cholnoky faced a suit alleging that she waited too long to perform a cesarean section, which caused the baby boy to be born with cerebral palsy. She lost that case. The state jury in Stamford awarded the parents one of the largest medical malpractice awards in Connecticut history: $38.5M.

Under the “born alive rule” and based on the age of the fetus at birth (22 weeks), this suit will likely be another verdict against de Cholnoky. The Fosters’ child was born alive and met the legal criteria for viability as determined by the SCOTUS in Roe. It remains to see if Rosenbaum’s appeal of Judge Kamp’s permitting the case to move forward will be successful (I doubt it will) and how the jury will decide.


Court Case Takes up Issue of When Fetuses Become People

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