Lawyers in $2 million wrongful death case debate when life begins
A lawyer defending a couple in a $2 million wrongful death lawsuit filed by an alleged pregnant woman argued Thursday that there’s no evidence the woman was pregnant at the time of a traffic crash that she contends caused the death of her 3-week-old fetus.
Lawyers also argued in a pre-trial hearing Thursday about whether state law has changed regarding the circumstances that must be met for an unborn child to qualify in a wrongful death claim.
The judge’s ruling in the Jones County Superior Court case could be the first of its kind since Georgia legislators amended the state’s feticide statute in 2006 to include protection for an unborn child at any age of development.
Patricia Love was a passenger in a car driving along Ga. 49 in Jones County on Aug. 10, 2013. About a half-mile north of Pitts Chapel Road, another car struck the one she was riding in from behind.
Love filed suit last year against the other car’s driver, Mamie Bivins of Macon, and her husband, James Bivins, alleging she miscarried her 3-week-old fetus as a result of the crash.
David Dorer, Love’s lawyer, said state legislators changed the definition of unborn child in multiple areas of state law in 2006.
Many states amended feticide statutes after the 2004 trial in California of Scott Peterson. Peterson was convicted of murder in the death of his pregnant wife. He was charged with a separate charge of murder for the baby’s death.
Michael Mayo, a lawyer representing the Bivinses, argued the change in Georgia law only affects criminal cases, not civil claims.
He said the legal standard defining when life begins is “quickening” -- when a fetus has the ability to move in the womb.
Quickening occurs between the 10th and 16th weeks of pregnancy, Mayo said.
Dorer argued that legislators intended for the change to also apply to wrongful death claims as well.
He described quickening as an outdated standard and “junk science.”
Determining when life begins is aimed at gauging whether the pregnancy is viable before making a wrongful death claim -- something that can be determined by a jury, Dorer said.
“To close the door on the plaintiff making a claim for the wrongful death of her child because we’ve arbitrarily set a cutoff where life is not important until it has the ability to have an arm or leg move about the inside of the womb ... what we’ve done is set a long series of completely inconsequential circumstances that shuts the door on young women who have the lives of their children taken from them as the result of the negligence of another person,” he said.
An arbitrary cut-off “devalues the initial stages of human existence, and it devalues the concept of the plaintiff’s ability to care for a child that has not yet been brought into this world,” Dorer said.
AN ALLEGED PREGNANCY
Mayo said the question Judge Alison Burleson must answer isn’t “when life begins.” Instead, it’s whether Love has a claim for a 3-week-old embryo.
Love testified in a deposition that she didn’t experience symptoms of miscarriage and only learned of her alleged pregnancy when she was taken to a local hospital after the crash, he said.
There, a blood test showed elevated enzyme levels that indicated a possible pregnancy. A urine pregnancy test administered the following morning returned negative results, Mayo said.
He contends the blood test was a “false positive.”
“The plaintiff must prove that she has a claim. In order to do that, she must first prove that she was pregnant,” Mayo said. “The evidence is otherwise.” Dorer said Love also took the fact that medical staff initially put off a CT scan and X-rays to be because she was pregnant.
He argued her statement that she was pregnant is sufficient to allow the case to move forward and be presented to Jones County jurors.
Lawyers have an additional 20 days to file briefs before the judge issues her ruling.
Information from Telegraph archives was used in this report. To contact writer Amy Leigh Womack, call 744-4398.