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January 21, 2008 issue
Medical Malpractice
BILL: HB 1239 – Wrongful Death or Injury of a Child
AUTHOR: Rep. Peggy Welch, D-Bloomington
ISMA POSITION: Opposed
THIS WEEK: The bill, as introduced, would include a viable fetus in the definition of a child for purposes of the Wrongful Death Act (WDA). This bill is being sought to counter a decision by the Indiana Supreme Court in 2002 that prohibited recovery under the WDA for the mother’s unborn child as the result of an automobile accident.
The ISMA does not have a position on the underlying issue that the bill addresses pursuant to the case, which is recovery under the WDA for personal injury to an unborn child. ISMA’s concern with this bill is its potential impact on the Medical Malpractice Act.
The bill would likely change current case law holdings that allow for only one recovery to the mother for losses of unborn children. The ISMA is prepared to express concern with the impact this bill will have on an already problematic malpractice situation for obstetrics, emergency medicine and primary care.
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