Lawsuit goes to Court of Appeals


A Baltimore woman who suffered a miscarriage after a car crash is going to Maryland's highest court today to argue that though she's not entitled to ask for damages for a lost life, she should be able to be compensated for a lost body part.

The case - referred to the Maryland Court of Appeals by a federal court that said it exposed a hole in state law - could result in women who suffer injuries that lead to miscarriage being compensated for the loss of a fetus in the early stages of pregnancy. Since 1995, Maryland law has barred wrongful-death claims for the loss of a fetus before it is viable.

"You can't have a situation where you injure a woman and cause her to suffer a miscarriage, and then there is no cause of action. It just feels wrong," said Dwayne A. Brown, a lawyer representing the Baltimore woman.

But the lawyer for the insurance company opposing the lawsuit says there are circumstances in which a woman could recover damages for the loss of a fetus - but that this case is not one of them.

"Somewhere the law has to cull claims for which people can't recover, as opposed to being able to recover for anything and everything," lawyer Alan R. Siciliano said.

The case before the Court of Appeals stems from a traffic accident near the Inner Harbor. Stacey Smith was driving on East Pratt Street on Jan. 10, 2000, when, she testified, her car was struck by a truck driven by Diana Borello, then of Westwood, N.J.

Miscarriage after crash

A day after the crash, Smith suffered a miscarriage, ending her 19-week pregnancy.

Jurors hearing Smith's civil lawsuit in U.S. District Court in Baltimore were not allowed to consider her distress over the miscarriage or lost work time as she grieved, nor were they allowed to see the photographs of the stillborn fetus, court records show. The judge ruled that she was in effect seeking wrongful-death damages for the loss of the fetus, which is not allowed under state law.

Siciliano said parts of Smith's suit are indistinguishable from a wrongful-death action, seeking damages for anguish over a dead fetus by arguing that it is a body part.

"It seems to be a distinction without substance. It seems to be an effort to come in the back door when you can't come in the front door," Siciliano said. "Although Ms. Smith could recover for her own injuries and any additional medical expenses she may have incurred as a result of the aborted fetus, she could not recover the damages for emotional distress because that would be a wrongful-death case."

Last year, U.S. District Senior Judge Alexander Harvey II agreed and told the jury not to consider the miscarriage. Jurors blamed Borello for the crash and awarded Smith $14,382, court records show.

Federal appeal

Smith's lawyer, Brown, filed an appeal with the U.S. Court of Appeals for the 4th Circuit. Its judges said they found no Maryland law on the point Brown raised, and they sent the question to the state Court of Appeals. Based on the Maryland court's ruling, the federal court might decide to order a full or partial retrial or stick with the jury verdict.

Lawyers not involved in the case say the question will be a tough call, touching emotional and politically hot issues. A ruling for Smith would open a new avenue for lawsuits, though the lawyers say the circumstances are too unusual to lead to a flood of litigation.

"If you look at the fetus and say it's not an individual entity legally, then what is it? Is it a part of the mother? Sure. There is some logic to that argument," said attorney Bruce J. Babij. "I think if you took a poll on the street, people would say yes, the mom should be able to be compensated."

If not, insurers of drivers who accidentally kill a previable fetus "get a pass," he said.

Scott Patrick Burns, president of the Maryland Defense Counsel Inc., said that what Brown is arguing for sounds like what Maryland courts exclude, and that Harvey was right not to allow it.

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