A Colorado man filed a wrongful-death lawsuit following the death of his wife and unborn twin children in 2006. In January 2006 the wife went to the emergency room because she was experiencing shortness of breath and vomiting. Her husband took her the emergency and when he returned to from parking the car he found his wife unconscious with a nurse attempting to wake her up.
While attempting to revive the wife, the emergency room staff also tried to page the obstetrician on call. The obstetrician never came to the hospital but did speak to the husband on the phone. One of the emergency room nurses checked for the fetal heartbeats but could not find any. Since they could not find the fetal heartbeats they assumed the twins were dead the emergency room doctors decided not to do a perimortem cesarean section. In some instances this procedure can save the lives of both the mother and babies. The mother died of a massive heart attack due to the main artery leading to her lungs clogged and her two unborn sons died as well.
In the wrongful death lawsuit it was argued that if the obstetrician on call had come to the hospital or instructed the emergency room staff to perform the caesarian section the twins may have been saved even though the mother may have still died. The hospital claimed that a wrongful death claim cannot be based on the two unborn fetuses because Colorado state courts define a ‘person’ to be only those born alive.
The trial court found for the hospital and so did the Colorado Court of Appeals. This past September the attorneys for the husband have appealed the case to the Colorado Supreme Court. In the petition, it was argued that two judges on the Court of Appeals overlooked key facts in the case and that their rulings in favor of the hospital will open up loopholes in the malpractice laws that would relieve doctors of responsibility to patients whose viable fetuses are at risk. The court has yet to decide whether to hear the case.
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