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December 04, 2005
New Law May Allow Mothers To Be Sued For Injuries To Fetuses
I'm not sure what I think of this. A married couple in Canada had succeeded in getting a loophole closed that allowed the woman's insurance company to avoid paying for health care for their daughter, who was severely injured in a car accident while the mother was driving.
The kicker - the injuries occurred while the mother was five months pregnant. The daughter wasn't born yet.
I know that the husband has sued his wife so that they can get the insurance company to pay for medical care for their daughter, who was born blind and severely-brain damaged due to the accident. She also has cerebral palsy and epilepsy. If he had been driving, the insurance company would have covered the payments. Since his pregnant wife was driving, the insurance company pays nothing.
Abortion rights activists are leery of the new law, which applies only to car accident cases. Joyce Arthur of the Abortion Rights Coaltion fears that the law could lead to "suing a woman for causing brain damage in her fetus because she drank or smoked during her pregnancy. And of course the anti-abortion groups could exploit the law as well."
Several newspapers stated that "[i]n a ruling six years ago, the Supreme Court of Canada said a child can't sue its mother for damages suffered in the womb. But the ruling also left a small and very narrow loophole, saying provinces could allow a child to sue its mother, but only in the case of a car accident."
Are there any lawyers reading this post who can comment? I know that the couple is suing so they can get the mother's insurance company to pay for their daughter's medical care. They are currently paying the bills themselves. Plus, the mother continues to get medical treatment for herself. She has a twelve centimeter break in her pelvis due to the accident. She was thrown from the car after hitting a patch of black ice while on her way to church. She suffered a broken neck and broken pelvis.
I believe that fetuses may be considered property under the law, so parents may be able to sue on those terms. If I'm wrong, let me know. However, this new law allows children to later sue for damaged done to them while in utero. I don't believe that the law refers to fetuses as persons. If someone has more knowledge of this issue, please post about it here. You can run a Google search for the mother's name - Lisa Rewega - to get more information about the case.
Posted on December 4, 2005 at 01:13 PM | Permalink
Comments
Good Gawd, I hate insurance companies. Personally, I detest these debates about whether something is a potential human, a human, property, etc., at least as they result in public policy. For me, the pro-choice position is simple. If you make abortion illegal, than women get killed or injured in illegal abortions. Insofar as some hospitals had approval committees 40 years ago, this would never work today as abortion has become too politicized. In general, I don't trust committees, legislatures, or insurance companies when it comes to decisions about people's health care. That's why I would prefer for these decisions to be made by the patient (the pregnant woman in abortion cases) along with her health care providers in consultation.
That said, I think it is obscene that a penny-pinching insurance company has turned this tragedy into some sort of abortion/what is life debate. We have a child here who needs health care assistance. So my reaction is quit will the b------t and give her care! Wanna know why Americans pay so much in health care costs but have so little to show for it? It's because of lawyers and health insurance companies getting into these pointless how-many-angels-fit-on-a-head-of-a-pin debates instead of just getting the kid health care. If they want to go off into a corner and argue what I think is basically metaphysics --go ahead. Shoot, I studied a lot of philosophy in college, and I'm inclined to get sucked into this crap worse than most. But leave the results (i.e. whether a family goes into bankruptcy trying to care for a very sick child) out of it. And for crying out loud, don't pay these people who go into these nature of life discussions and tie up our courts and health care system. Leave it for late at night in your college dorm after a couple of beers.
Posted by: silverside at Dec 4, 2005 2:06:42 PM
Now that I think about it, I don't see any contradiction between being completely pro-choice as I am and supporting this measure. Even if fetuses don't have any moral worth, the lawsuits are about damage subsequently suffered by the born. Think about it this way: suppose that due to ionizing radiation, your sperm or ova suffer mutations that subsequently cause your children to be genetically deformed. Suppose further that you were subjected to this ionizing radiation through negligence. I think it's clear that you should be able to sue on your child's behalf. Moreover, for the same reason, your insurance should cover the damage done to your child. For similar reasons, your insurance should cover damage done to children while they were fetuses.
Posted by: Alon Levy at Dec 4, 2005 5:12:50 PM
"For similar reasons, your insurance should cover damage done to children while they were fetuses."
But then in theory can they, in the future, charge a mother with something if she caused an accident and injured her own fetus in the process...
I guess that's the fear here.
Posted by: NYMOM at Dec 4, 2005 11:56:10 PM
If you apply the ova test, then you'll see why this isn't a necessary consequence of that. Besides, the Supreme Court of Canada has already ruled that fetuses are considered parts of their mothers, so there is no risk of this leading to fetuses having legal rights.
Posted by: Alon Levy at Dec 5, 2005 3:55:12 AM
Of course, if we had universal health insurance the point would be moot. The kid would get the health care she needed, and we wouldn't have to indulge these pointless arguments. You're sick? You get care. End of discussion.
Posted by: silverside at Dec 5, 2005 9:11:43 AM
I thought Canada did have universal health insurance.
Posted by: Alon Levy at Dec 5, 2005 11:24:21 AM
Apparently there are more loopholes in the Canadian safety net than one would have thought.
Posted by: silverside at Dec 5, 2005 12:21:37 PM
I don't understand this. It seems to me that if the assumption is made that the unborn child is part of the mother then the child's injury would be covered as if it were the mother's personal injury. If the assumption is made that the unborn child is a separate person then the child's injury would be covered as if the mother had injured an uninsured person. Another thing I don't understand is how it can be claimed that the mother was 'at fault'. It was an accident involving black ice. If you really had to assign liability wouldn't the local government be more responsible, was the road adequately treated, lit, drained, closed? Many times with black ice it doesn't matter how fast or slow you are going, you hit it and you no longer have any control. I don't see how the mother is at fault, the weather and the presense of black ice is at fault. What if snow or wind had caused a tree branch to fall on the car causing the accident, would they still think the mother was at fault? If black ice always occured in that area then it is predictable and the local government is at fault for not correcting the problem, if black ice sporadically occured in that area then it is unpredictable and the mother would not be at fault. Ridiculous! The insurance company just needs to honor its obligations and then sue the local government if they want.
Posted by: Tavi at Dec 5, 2005 10:29:26 PM
Canada does have universal health care, but not everything is necessarily covered. In general, we're pretty good on acute care, but continuing care not so much. So a lot of the specialized care this little girl needs just to get through her everyday life would probably fall on the parents financially. As well, if the mom needs ongoing treatment for pain/disability related to the accident, the gov't, at least in Alberta, pays for only a certain number of sessions per body part per year (for physiotherapy anyway, don't know about other modalities) that either the mom would have to be paying herself, or hope she has a good benefits plan at work.
Posted by: tr1c14 at Dec 6, 2005 5:04:57 PM
Thanks for the clarification. I have Canadian friends who are always telling me to move up there. It's sobering to hear that Canada isn't quite the utopia it's sometimes played up to be.
Posted by: silverside at Dec 6, 2005 8:17:16 PM
No, Canada ain't no utopia, but there are aspects of it that are definitely better than the situation in the US. I blog about Canadian politics and am currently blogging about the Canadian election after a long blog break. I also blog about the US too. And cheese.
Posted by: Mandos at Dec 6, 2005 8:51:57 PM
I personally see no argument here...The Canadian laws need to change> We all know change is good...Walk a mile in this family's shoes and maybe you will understand...They atre making a point.It's not about money, it's about Brooklynn and her well being...She is somebody...She is someone special...God love her..The angel she is...Walk that mile and then comment okay...
Posted by: Kim at Jan 25, 2006 10:13:16 PM
