There’s no comfort in the waiting room

Nor, for one Colorado couple, in the courtroom:

Lori Stodghill was 31-years old, seven-months pregnant with twin boys and feeling sick when she arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb.

So far, so bad. The story goes on to mention that her husband filed a wrongful-death suit (which, given how Dr. Staples handled his wife’s case, is probably the least that could be expected) stipulating that, even if Staples couldn’t be there, he could have instructed the staff to perform an emergency caesarian section. While Lori Stodghill’s life would probably have been forfeit either way, her children could’ve been saved.

Obviously, no hospital wants to pay out a malpractice suit, and so they’ve engaged a team of malpractice lawyers to do what they do best – finesse the law as much as possible to allow the hospital enough breathing room in the eyes of a judge. The problem is that St. Thomas More, as the name implies, is a Catholic hospital, which makes this defense from its lawyers, at the very least, suspect:

As Jason Langley, an attorney with Denver-based Kennedy Childs, argued in one of the briefs he filed for the defense, the court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.” (emphasis mine)

Now, as the young’uns (younger’n’me’uns?) say, I am not a lawyer, but I think that what Langley is trying to do is focus on the meaning of the word “person” under the Wrongful Death Act, rather than make an argument one way or the other about life issues. This raises a twofold issue: one, this might not be first-order hypocrisy (in which the hypocrisy – trying to get Catholic Health off while still allowing Catholic organizations to rail against statutes that do not protect “unborn persons” – would be an end in and of itself) but it is sure as hell second-order (this legal hairsplitting has the same effect anyway). Two, though the Independent article mentions that Catholic Health has so far been successful with this argument, you have to wonder if the two judges who heard the case ever read the Wrongful Death Act. If the Colorado Supreme Court decides to take the case, I hope they pay attention to the fact that Catholic Health’s argument is not only full of shit externally (which is outside the Court’s jurisdiction anyway), but that it misreads precedent on the Wrongful Death Act!

St. Thomas More Hospital, Cañon City, CO. (Credit to Cañon City Chamber of Commerce.)

Again, I’m no lawyer – but look at what a quick Google search (okay, a somewhat-burdensome search for the text of the Colorado Revised Statutes, including a traipse through LexisNexis) pops up:

A child who is born alive and subsequently dies is a person within the meaning of this section. A wrongful death action may be maintained regardless of whether the child was viable at the time of the injury or whether the child was viable at the time of birth. Gonzales v. Mascarenas, 190 P.3d 826 (Colo. App. 2008).

Applicability of provisions to viable fetus. A wrongful death action may be maintained for the death of a viable fetus, particularly a full-term fetus. Espadero v. Feld, 649 F. Supp. 1480 (D. Colo. 1986).

(Emphasis mine, again.) I think the first decision is what Langley was going for in his argument: Lori Stodghill’s twins weren’t born and then died, so under Gonzales v. Mascarenas, they’re not “persons.” Even then I’d argue that the language in the second part – “whether the child was viable at the time of the injury” – could leave Catholic Health’s argument a little shaky there.

What I don’t understand is how, apparently, that second piece of precedent hasn’t been brought up more often. The twins were viable. If Espadero v. Feld is still state law, that should allow the Stodghill suit to go through. I can understand Catholic Health’s lawyers ignoring this, as they’re attorneys for the defense, but for the life of me I can’t figure out how not one but two judges missed something that took me less than ten minutes to dig up.

(Actually, that’s not true. Arthur Roy, the now-retired Court of Appeals judge who took the case and found for Catholic Health, apparently used to be a hospital attorney. Go figure. No explanation on the other guy yet.)

Luckily, Jeremy Stodghill is in good hands. As the article mentions, his attorneys have already pointed out that the two judges who already heard the case “overlooked key facts and set bad legal precedent.” Here’s hoping that the Colorado Supreme Court recognizes that and grants the case a hearing.

(h/t to friends Jesse P. and Jenny G.S.)

UPDATE: K.R. proves why the “I found this in ten minutes of LexisNexis searching” standard is probably not a good one if you’re looking for authoritative precedent. From her Facebook comment:

Just a heads up: Espadero is a federal district court decision, which means that it isn’t binding on a state court.

I can’t believe I missed something that obvious, but there it is. To some degree this takes the judges off the hook, since neither the state legislature nor the state courts have made a decision one way or the other, so there is no binding precedent for them. That said, I wanted to take this as an opportunity for some research, so I looked up Espadero (649 F.Supp. 1480 [1986]) and had a butcher’s at Judge Carrigan’s reasoning.

In Espadero, Carrigan notes the antiquated nature of the Colorado Revised Statutes in regards to obstetrics (“[l]egislators likely gave no thought to whether they were creating an action for prenatal death or whether the word ‘person’ as used in the statute included a fetus”) and furthermore provides citations from cases in state courts in Alabama and Rhode Island, as well as a Fourth Circuit case, to reach the conclusion that “the modern trend and weight of authority both favor recognizing the right to maintain an action for the wrongful death of a viable fetus.” Carrigan then proceeded to hold that a wrongful death action could be maintained under CO law for the death of a viable fetus.

As K.R. pointed out, this is ultimately non-binding and the CO Supreme Court could completely ignore it in its decision, and the judges who have already tried the case had no obligation to recur to it. That said, hopefully it will prove persuasive at some point or another in this process.


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