In a previous post, we reported that the Alabama Supreme Court changed a century of wrongful death law by allowing a claim to be made for a fatal injury to an unborn child. On the heels of that decision, Mack v. Carmack, the Court has again addressed the issue and provided guidance as to the type of damages that can be claimed.
Typically, the only damages that may be awarded in an Alabama wrongful death claim are punitive in nature, designed to punish the Defendant and/or deter others from acting the same way. But, in the most recent case of Hamilton v. Scott, a medical malpractice claim, the mother made a claim for emotional distress, separate and apart from the normal punitive damages claim in death cases.
The Court, relying on relevant precedent, ruled that the trial court properly dismissed the emotional distress count because the mother did not prove a separate physical injury to her. The mother had previously argued that her unborn child was part of her. But the Court held that, based on older case law, a fetus is a separate entity with a "separate existence" from the mother. Based on this decision, it appears that the Alabama Supreme Court will continue to limit fatal injury claims to the punitive damages recoverable in wrongful death actions.
Even though the Hamilton v. Scott case involved medical malpractice issues, suits for fatal injuries to a fetus can be brought in any number of situations, including car accidents, on-the-job accidents or injury caused by a defective product.
1 Comment
accident attorney
April 24, 2012 at 4:33 AM
That said, identity theft defense is a fairly new area of the law. For this reason, experience may not mean a list of hundreds of successful cases. You want a lawyer who knows this branch of the law well, but set your expectations at a reasonable level to ensure that you get quality representation, without expecting too much experience in a new branch of the law.
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