Whatever your opinions on abortion itself, it is hard to argue against the sentiment that the decision to have an abortion is typically a painful one. Many women suffer from mental anguish and trauma after terminating a pregnancy.
A bill now making its way through the Florida legislature – HB 19 – seeks not only to acknowledge this suffering, but offer women who have had an abortion to take legal action against the doctor who performed the procedure and receive compensation for what they have had to endure. Essentially, they can file a wrongful death lawsuit because the doctor terminated their pregnancy.
How would this work according to the law?
Understanding HB 19 and How It Would Work
At first glance, it only appears that women can sue doctors for negligence or “failure to obtained the informed consent” under HB 19. That makes sense, and is similar to a doctor performing pretty much any procedure without consent. Simply put, medical professionals are not allowed to do that.
However, if you read the fine print of the bill, it also says that women who have signed the proper waivers can still file a lawsuit. How? According to the bill, women could argue that even though they consented, they did not have the proper information needed before agreeing to terminate the pregnancy. In other words, they didn’t really understand what they were doing and the doctor didn’t do a good enough job of explaining it to them.
That being said, there are limitations. First off, women must file a lawsuit within 10 years of the procedure being performed. Second, if they file a claim after signing a consent form, it reduces the amount of damages they can get.
Of course, this is all assuming that HB 19 passes. While the bill was already approved in a House subcommittee, it still has two more committees to go before the entire House will be able to vote. Even then, there are more hurdles to clear before it can become a law.
Precedent for Fetuses in Wrongful Death Suits
If HB 19 does become a law, Florida will certainly make headlines, but we won’t be the first state to debate over whether a fetus can be the subject of a wrongful death lawsuit. Earlier this year in Alabama, the state’s Supreme Court ruled that a mother could move forward with a wrongful death lawsuit after a miscarriage.
An Alabama judge had previously ruled that, according to the Wrongful Death Act and other rulings, doctors were immune to both criminal prosecutions and civil lawsuits after “a mistake or unintentional error causing the death of a pre-viable fetus.” The Supreme Court reversed this decision and ruled that the judge had made an error.
In making their decision, the Supreme Court referred to a 2011 decision that stated Roe v. Wade’s viability standard does not apply in wrongful death lawsuits. The “viability standard” is the period of time when a fetus is able to survive on its own and outside of the womb. This is usually pegged at a minimum of 23 weeks.
What Happens Next, and Where Wrongful Death Stands Now
Again, it’s probably too early to tell whether or not the bill will move forward and become a law. Many speculate that along the way, it will face legal challenge for its ability to place obstacles in the path of women who want to terminate a pregnancy without providing any countervailing benefits. Only time will tell whether or not we will see a wrongful death lawsuit over an abortion.
As Florida’s wrongful death statute stands now, it applies to death that is “caused by the wrongful act, negligence, default, or breach of contract” of a person or entity. After someone dies due to negligence or related causes, the person’s parents, spouse, children, or any blood relative/adopted sibling who was dependent on the person may file a lawsuit.
The plaintiff can ask for damages that include:
- The value of support and service that the deceased person provided to the plaintiff
- The value of companionship, guidance, and protection provided by the deceased
- The value of mental and emotional pain from losing a child
- Medical or funeral expenses directly related to the person’s death
Additional damages may also be collected and given to the deceased person’s estate.
The claim must be filed within four years of the date of death.
For more information on wrongful death lawsuits, failure to obtain informed consent, and medical malpractice, talk to a Florida personal injury lawyer.
About the Author:
John K. Lawlor, a South Florida personal injury attorney who focuses his practice on complex personal injury, wrongful death, and professional malpractice, founded the law firm of Lawlor, White & Murphey in 1998. Since 1995, Mr. Lawlor’s trial advocacy and litigation skills, as well as his wide-ranging legal expertise, have provided plaintiffs and their families with a distinct advantage when seeking financial compensation and justice for injuries caused by the negligence of others. Mr. Lawlor is an EAGLE member of the Florida Bar Association and an active member of the American Association for Justice, the Broward County Justice Association, the American Civil Liberties Union (ACLU), and several professional associations.