Rights of the unborn

I had a phone call today from a lady who recently suffered a miscarriage. She had been prescribed medication during her pregnancy which she believed caused the miscarriage. Without getting into the issue of whether the medication was the cause, I had to inform the mom of the very sad state of Texas law. Simply put, Texas medical malpractice laws do not protect the unborn. Since the Texas Supreme Court’s 1971 ruling in Yandell v. Delgado, a fetus is barred from asserting a claim for medical malpractice unless it is born alive. I know this seems to run contrary to much of what we hear and read about the rights of the unborn, but the Supreme Court has reaffirmed its position in Krishnan v. Sepulveda (1995), Edinburg Hosp. Auth. v. Trevino (1997) and Fort Worth Osteopathic Hosp. v. Reese (2004). The Supreme Court has held that the mother (but not the father) can recover for the loss of the fetus as a part of her body, but cannot recover mental anguish damages for the loss of the fetus as a separate individual. The Texas legislature in 2007 enacted Tex. Civ. Prac. & Rem. Code 71.003, creating a right to sue for the wrongful death of an unborn child. The catch is that the law does not apply to claims brought against doctors and hospitals. So parents can sue for the wrongful death of a fetus arising from a car crash, but not for egregious errors committed during delivery or prenatal care.