Does West Virginia recognize a cause of action for the wrongful death for an ectopic embryo or fetus?
In 2013, Respondent, Angie Damron, was pregnant. Petitioner, Dr. Saleh, delivered the child by caesarian section and thereafter performed a double tubal ligation. Three years later, Mrs. Damron went to a Beckley hospital with complaints of abdominal pain and related symptoms. Diagnostic testing indicated that she was pregnant again. Ultrasounds, however, did not show an intrauterine pregnancy. Later testing disclosed a live ectopic embryo with a gestational age of approximately 6 weeks. Mr. Damron was then admitted to the hospital and the embryo was surgically removed.
Mrs. Damron sued Dr. Saleh on behalf of “Baby Damron,” alleging that Dr. Saleh failed to obtain fully informed consent warning Mrs. Damron of the risks associated with a failed tubal ligation. Dr. Saleh moved to dismiss, asserting that West Virginia law does not recognize a cause of action for a wrongful death resulting from an ectopic pregnancy. The case comes to the West Virginia Supreme Court by way of certified question.
Petitioner, Dr. Saleh, argues that W.Va. Code 55-7-5 provides a remedy only for the wrongful death of a “person.” In Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (1995), the Supreme Court defined “person” to include a nonviable, unborn child. However, Farley limited its holding in cases where the child was en ventre sa mere--i.e., in its mother’s womb. This is consistent with West Virginia statutes making it a crime to injure or kill an unborn child “in the womb” by acts of violence. Dr. Saleh also argues that no other American jurisdiction recognizes a wrongful death claim in the context of ectopic pregnancies.
Mrs. Damron argues that Dr. Saleh’s argument is premised on dicta from the Farley opinion. Mrs. Damron points out that Baby Damron was, indeed, carried in his mother’s reproductive system and that Dr. Saleh’s wrongful conduct caused him to be “trapped in a biological mechanism that would never permit his life and caused his death.” This clearly brings the case within the scope of Farley. Mrs. Damron also distinguishes cases cited by Dr. Saleh, noting that done of them, in fact, raised any issues involving lack of consent.
This case will not have a widespread impact, but will be a good indicator of the Supreme Court’s willingness to expand the common law. With its current conservative leanings, I doubt that the Court will be willing to apply Farley to ectopic pregnancies. My prediction is that the Court will expressly limit Farley to situations where the unborn child is in utero.