Stinnett v. Kennedy

• Decision Date: 30 December 2016
• Docket Number: 1150889
• Citation: 232 So.3d 202
• Parties: Kimberly A. STINNETT v. Karla G. KENNEDY, M.D.
• Court: Alabama Supreme Court

232 So.3d 202

Kimberly A. STINNETT

v.Karla G. KENNEDY, M.D.

1150889

Supreme Court of Alabama.

December 30, 2016

Rehearing Denied March 31, 2017

Stephen D. Heninger and Jeffrey P. Leonard of Heninger Garrison & Davis, LLC, Birmingham, for appellant.

Michael K. Wright, Sybil V. Newton, and George E. Newton of Starnes Davis Florie LLP, Birmingham, for appellee.

MAIN, Justice.

Kimberly A. Stinnett appeals from the dismissal of her claim against Karla G. Kennedy, M.D., alleging the wrongful death of her unborn previable child. We reverse and remand.

I. Facts and Procedural History

On May 9, 2012, Stinnett's obstetrician, Dr. William Huggins, informed Stinnett that she was pregnant. Two days later, on Friday, May 11, Stinnett experienced abdominal cramping and fever. Because it was after hours on the weekend, Stinnett called Dr. Huggins's answering service and received a call back from Dr. Kennedy. Dr. Kennedy was not a partner of Dr. Huggins's, but she was sharing calls with him on that weekend. Dr. Kennedy instructed Stinnett to go to the emergency room at Brookwood Medical Center. Upon admission to the emergency room, Stinnett reported that her last menstrual period had been on Sunday, April 1, 2012, indicating that she was approximately six weeks pregnant.¹ Stinnett also reported prior miscarriages in 2005 and 2007 and a prior ectopic pregnancy²

in 2010, which resulted in the rupture and removal of her left fallopian tube.

An ultrasound performed in the emergency room revealed intrauterine fluid in the endometrial cavity that could be a gestational sac, but there was no evident yolk sac, fetal pole, or cardiac activity.³ Stinnett's pregnancy-hormone level, HcG, was measured at 18,473. Based on those findings, and Stinnett's history, Dr. Kennedy was concerned that Stinnett was experiencing another ectopic pregnancy

. On May 12, 2012, Dr. Kennedy performed a dilation and curettage ("D & C"), a surgical procedure in which the cervix is dilated and tissue is removed from the lining of the uterus, and a laparoscopy to determine whether the pregnancy was intrauterine⁴ or ectopic. The operative report from that procedure said that Stinnett had a normal appearing right ovary with "no evidence of ectopic pregnancy." The pathology report for the tissue taken from the uterus showed it was made up of "products of conception."⁵ Although Dr. Kennedy's postoperative notes indicate that she had not completely ruled out an ectopic pregnancy, Stinnett said that Dr. Kennedy informed her that there was no ectopic pregnancy but that she still felt as though there had been a miscarriage. Dr. Kennedy, however, testified that she still held "a high suspicion" of ectopic pregnancy on May 13 and, therefore, ordered methotrexate, a cytotoxic drug used to treat ectopic pregnancies, be administered to Stinnett. The drug is intended to cause the end of the pregnancy.

On Monday, May 14, Dr. Huggins returned and took over treatment of Stinnett at the hospital. A follow-up ultrasound showed that what had previously been suspected to be an intrauterine gestational sac had, in fact, progressed to a "definite yolk sac." In his discharge summary for Stinnett, Dr. Huggins stated that Stinnett was having a failing intrauterine pregnancy possibly as a result of her methotrexate

injection. Several weeks later, on June 8, 2012, Stinnett suffered a miscarriage. It is undisputed that, at no time before the miscarriage was the fetus viable in the sense that it could have survived outside the womb. The evidence was disputed, however, as to whether the fetus could have reached viability.

On November 29, 2012, Stinnett sued Dr. Kennedy in the Jefferson Circuit Court. Stinnett alleged that Dr. Kennedy committed medical negligence when she performed the D & C and administered methotrexate

. Stinnett contended that the D & C should not have been performed and the methotrexate not administered, given that her pregnancy was not ectopic and that those procedures violated the applicable standard of care and proximately caused "the loss," or termination, of her pregnancy, as well as causing her severe physical pain, mental anguish, and post-traumatic stress disorder. In addition to claims based on her own alleged injuries, Stinnett's complaint included a claim alleging the wrongful death of her unborn fetus brought under § 6–5–391, Ala. Code 1975, entitled "Wrongful death of a minor" ("the Wrongful Death Act"). Stinnett later amended her complaint to add Dr. Kennedy's employer, Women's Care Specialist P.C. ("Women's Care"), as a defendant.⁶

On March 11, 2016, Dr. Kennedy and Women's Care filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss Stinnett's wrongful-death claim. They argued in that motion that, although Mack v. Carmack, 79 So.3d 597 (Ala. 2011), recognized that the Wrongful Death Act permits an action for the death of a previable fetus, the decision in Mack was based on a desire to establish "congruence" between the criminal Homicide Act, § 13A–6–1 et seq., Ala. Code 1975, and the civil Wrongful Death Act. Dr. Kennedy and Women's Care argued that the decision in Mack was based on an amendment ("the Brody Act") to Alabama's Homicide Act, that changed the definition of a "person" who could be a victim of homicide to include "an unborn child in utero at any stage of development, regardless of viability." § 13A–6–1(a)(3), Ala. Code 1975. Dr. Kennedy and Women's Care noted, however, that the amendment to § 13A–6–1 also contained an exception for imposing criminal liability on a physician for the death of a nonviable fetus as a result of "mistake, or unintentional error on the part of a licensed physician." § 13A–6–1(b). Dr. Kennedy and Women's Care thus contended that true "congruence" between the Homicide Act and the Wrongful Death Act required that Dr. Kennedy and Women's Care be excepted from civil liability under the Wrongful Death Act for the death of an unviable fetus.

On April 15, 2016, the trial court entered an order granting the motion to dismiss Stinnett's wrongful-death claim. The trial court concluded:

"After considering all of the ... arguments and authorities, this Court finds that the existence of the ‘physician's exception’ to the Brody Act, codified at Ala. Code [1975,] 13A–6–1(b), prohibits the extension of civil liability under the Wrongful Death Act to licensed physicians who through mistake or unintentional error cause the death of a previable fetus.

"Defendants' motion to dismiss plaintiff's wrongful death claim brought on behalf of her non-viable fetus is, therefore, GRANTED and the wrongful death claim is DISMISSED from this case."

(Capitalization in original.)

The case then proceeded as to Stinnett's claims based on her own injuries, including mental anguish, suffered as a result of Dr. Kennedy's alleged medical negligence. On April 26, 2016, Dr. Kennedy moved for a summary judgment as to those remaining claims. She contended that Stinnett had failed to produce substantial evidence of a breach of the applicable standard of care by Dr. Kennedy or that Dr. Kennedy's actions probably caused the injuries complained of by Stinnett. The motion focused in large part on Stinnett's alleged failure to establish that the loss of her pregnancy was proximately caused by Dr. Kennedy. Although the wrongful-death claim had been dismissed, Stinnett still maintained that she personally suffered mental anguish and post-traumatic stress disorder

as a result of the loss of her pregnancy. Dr. Kennedy contended that the evidence established that Stinnett's pregnancy was failing before she was treated by Dr. Kennedy and that her pregnancy was never viable. Dr. Kennedy argued that it would be "speculation" to conclude that Dr. Kennedy's care and treatment caused the pregnancy to fail.

Stinnett opposed the motion, pointing to testimony of her expert, Dr. William Jamieson, indicating a "great likelihood" that the pregnancy was viable and that Dr. Kennedy's treatment "adversely [a]ffected" Stinnett's pregnancy. The trial court denied Dr. Kennedy's summary-judgment motion. The trial court did, however, clarify that "the dismissal of the wrongful death claim extends to any claim brought by [Stinnett] for the recovery of mental anguish and/or Post Traumatic Stress Disorder

which stems from the loss of the previable fetus." Thus, the trial proceeded only as to claims that the D & C and methotrexate injection caused Stinnett to suffer "severe physical pain and mental anguish and Post Traumatic Stress Disorder," excluding any issue as to mental anguish or post-traumatic stress disorder stemming from the loss of the pregnancy.

The case was tried before a jury during the week of May 2-6, 2016. During the trial, the jury heard testimony from Dr. Kennedy; Dr. Jamieson; Dr. Mark Purvis, the defendants' expert; and Stinnett and her husband, Greg Emerson. At the close of evidence, the trial court instructed the jury that Alabama law did not permit recovery for the loss of a pregnancy or the effects of the loss of the pregnancy on Stinnett. On May 6, 2016, the jury returned a verdict in favor of Dr. Kennedy and Women's Care and against Stinnett. The trial court entered a final judgment on the verdict the same day. Stinnett appealed the judgment as to Dr. Kennedy.

II. Standard of Review

Stinnett's appeal relates solely to the issue whether she can assert a wrongful-death claim against Dr. Kennedy for the death of her previable fetus, a claim dismissed by the trial court before trial. In reviewing a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P., we apply the following standard of review:

" ‘On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the

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