Monday, July 1, 2013
Jamie Abrams (Louisville) has posted to SSRN Distorted and Diminished Tort Claims for Women. The abstract provides:
Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.
While theoretically childbirth falls within a traditional negligence framework, unique dualities dominate the tort framework when applied to birthing malpractice cases. First, absent extenuating circumstances, the doctor and the woman make birthing decisions as dual actors with the woman normatively retaining primacy in medical decision-making. Second, the doctor owes a duty to both the birthing woman and the fetus in utero. Both birthing women and the children who suffer birthing injuries can separately bring tort claims against the physician(s), with some states extending liability through to when an in utero patient reaches the age of majority.
Birthing women rarely sue for their own physical harms resulting form obstetric malpractice, while fetal harms are frequent, emotional, and yield huge damage verdicts. This Article concludes that because the fetus has become the dominant patient in childbirth and the far riskier putative plaintiff in modern obstetric malpractice cases, this reality diminishes and subordinates the rights and remedies of birthing woman as patients and plaintiffs in problematic ways. This fetal harms focus has a pervasive and multi-layered impact. It distorts the standard of care that doctors distinctly owe to both the woman and the fetus. It tilts the dualities of childbirth toward the fetus. It valorizes medical judgments in response to uncertainty in childbirth and villainizes maternal responses that do not conform to an essentialized, self-sacrificial, and historically myopic view of childbirth.
Obstetric malpractice cases further reveal fetal-focused consequentialist decision-making whereby, when the child is born healthy, the duality of doctors treating both women and in utero fetuses collapses and birthing women’s rights to tort remedies are subsumed within the positive birthing outcome. Healthy babies negate maternal harms. This fetal harm focus is entrenched in litigation patterns and judicial precedent. It reveals real problems positioning the dualities of childbirth in our tort framework and preserving the autonomy of birthing women. This Article further foreshadows the pervasive problems “personhood” law reform initiatives present to the obstetric care model.