Letter from attorney: Measure 1 Opens the Door for New Medical Malpractice Claims

As published in the Bismarck Tribune on 11/1/14

By Bruce Schoenwald, Fargo

The debate over Measure 1 — the “Life Begins at Conception” Amendment — took an interesting turn when more than 70 doctors officially endorsed full-page newspaper ads in support of Measure 1.

The ads state that the doctors “studied Measure 1 in great detail” and that the claims of opponents are completely without merit. But the endorsing doctors fail to address one important point: the passage of Measure 1 would cause a direct and immediate change in the way malpractice claims over unborn children are treated by expanding the group of “persons” who could sue.

The law in that area was established in a 1984 North Dakota Supreme Court case titled Hopkins v. McBane where the mother of a stillborn child sued a doctor and a hospital claiming malpractice caused the death of her unborn child during the ninth month of pregnancy. Our Supreme Court allowed the case to go forward establishing the right to bring a malpractice claim for the death of an unborn child but — and this is the critical caveat — a claim could only be brought for the death of a viable unborn child — a child developed enough to live independently outside the mother’s womb.

Measure 1 wipes out 30 years of precedence by eliminating the viability requirement. If passed, it would force courts to recognize a right to sue all the way back to the point of conception. It seems truly surprising that doctors, who have aggressively sought reform to minimize the risk of facing medical malpractice claims, have not thought about this far-reaching impact of Measure 1. If it passes, it could easily become a real example of the maxim: “Be careful what you ask for; you just might get it.”

Bruce Schoenwald is a North Dakota attorney whose practice areas include civil rights and constitutional law.