PARENTS OF STILLBORN MAY SUE
Thursday, May 20, 1999
Section: Front
Edition: Weekly
Page: 1
© 1999 ARIZONA BUSINESS GAZETTE

By Howard Fischer,Capitol Media Services

A state appellate court has opened the door a little wider to lawsuits and damages against doctors.

The judges have concluded that parents of a child who is stillborn have the right to sue for loss of companionship. The court concluded the fact that the parents never had a relationship with the child outside the womb is not a barrier to such suits.

This is the first ruling of its kind in Arizona.

The case stems from a medical malpractice lawsuit filed by Beth and Stephen Burnham against several health care providers. The litigation said their negligence led to the stillbirth of their daughter, Lauren, one of a twin pregnancy.

In a separate ruling, the Court of Appeals reversed judgments against the defendants, entering directed verdicts for several of them and ordering a new trial for another one. That still left the question of whether the parents could sue for ''loss of society'' damages for Lauren's death.

Attorneys for the defendants argued that these types of damages are inappropriate in the case of a stillborn child. They said that these damages are supposed to compensate a survivor for the loss of a relationship with the person who died - a relationship they said was never developed.

Appellate Judge Susan Ehrlich, writing for the unanimous court, noted that the Arizona Supreme Court ruled in 1985 that the parents of a stillborn child can file a wrongful death action. The following year, the judge noted, the high court said loss of consortium claims are appropriate regardless of the age of the child.

With those precedents, Ehrlich continued, it is not a leap to conclude that a wrongful death action in the case of a stillborn child can include a loss of consortium claim.

The defense attorneys argued that, because there has been no relationship, any damages being sought are speculative and inappropriate. That argument did not wash with the appellate court.

''The damages are really no more speculative in one case than they are in the other,'' Ehrlich wrote, whether the child is stillborn or some other age. ''And, to a significant degree, loss of society or consortium damages always are incapable of exact measurement.''

She said it was up to the jury to consider ''to what magnitude the parents developed a relationship with Lauren when considering the amount to be awarded.'' In this case, Ehrlich said, there was ample evidence for a jury to consider when the case is sent back for a new trial.

''Before the twins were born, the Burnhams developed a relationship with them,'' she wrote.

''They spoke, sang and read to them,'' Ehrlich continued. ''They developed love for them and expectations for their future.''

The fact the child was not born alive does not change that.

''A parent's loss of a child's expected love and companionship does not vanish simply because the child is lost before birth,'' the judge wrote. ''To the deprived parent the loss is real either way.''

The case is Burnham vs. Miller et al. (1 CA-CV 96-0414).

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