97 So. 3d 728
Ala.2012Background
- Hamilton was pregnant with her second child and received prenatal care from IMG; she was told she was exposed to fifth disease and to schedule ultrasounds.
- Multiple visits between January and March 2005 revealed concern for potential fetal anemia and possible referral to a perinatologist, which did not occur.
- On March 10, 2005 an IMG ultrasound showed the fetus had died recently; the fetus was not viable at birth.
- The DeKalb Circuit Court granted summary judgment: wrongful-death claim for a previable fetus was not allowed and emotional-distress damages were not recoverable.
- Hamilton appealed the summary judgment; Mack v. Carmack (2011) later held that the Wrongful Death Act permits a claim for the death of a previable fetus, contradicting prior Alabama precedent.
- Court applies Mack to reverse in part and remand for reconsideration, but affirms the emotional-distress ruling for lack of evidence under zone-of-danger law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mack applies to allow wrongful-death recovery for a previable fetus | Hamilton argues Mack controls and overrules Gentry/Lollar | Defendants say Mack was not yet final; should not apply | Yes; Mack applies and reverses the prior grant of summary judgment on wrongful-death claim |
| Whether Hamilton may recover emotional distress damages | Hamilton contends Taylor allows bystander/emotional-distress recovery | Defendants rely on zone-of-danger; no physical injury shown | No; zone-of-danger requirement and lack of physical injury foreclose claim |
Key Cases Cited
- Mack v. Carmack, 79 So.3d 597 (Ala.2011) (overruled Gentry/Lollar; wrongful death for previable fetus allowed)
- Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993) (barred wrongful-death recovery for nonviable fetus (pre-Mack))
- Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993) (precedent denying recovery for previable fetus (pre-Mack))
- AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141 (Ala.1998) (zone-of-danger framework for emotional distress in Alabama)
- Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (Ala.1981) (emotional-distress recovery for failure to attend labor/delivery (historical context))
- Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (Ala.1973) (fetus not a part of the mother; independent existence within mother)