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During debate on a bill that would place a $1 million cap on noneconomic damages in medical malpractice cases, news of a stunning letter that reveals the medical community’s view of unborn babies and their value was shared by lobbyist Chip Baltimore, who was representing Trial Lawyers for Justice.

Baltimore shared that those advocating for the cap do not want to acknowledge their position that unborn children have no or little value.

“They’ve already put a value on that,” he said. “It’s $250,000. Their industry’s position is that if a child is not born and it dies, it’s not a life in the first place — and so there’s no death. No wrongful death claim that falls under the soft cap. They don’t want to tell you that when a pregnant woman goes into labor, the baby is in distress, and in a hospital, the healthcare provider removes a fetal monitor even though the baby is already in distress and they remove that monitor and let the mother sit there for an hour and then they come back and that baby is already dead, it was never life. It’s in writing. I’ve got it in writing that that’s their position.”

The letter referred to is a letter from a hospital’s lawyer stating that Iowa law prohibits parents from alleging a claim for a wrongful death of an unborn baby.

“Fifty years ago, the Iowa Supreme Court indicated that an unborn fetus is not a ‘person’ as defined by Iowa wrongful death statute,” the letter states, citing McKillip v. Zimmerman.

While the parents would be able to bring a claim for their loss of consortium of the child, the letter states the law also doesn’t allow the parents to claim negligent infliction of emotional distress.

With the Iowa Supreme Court interpreting Iowa’s wrongful death statute to not include unborn children, families of unborn babies who are killed in the womb lack any effective legal remedy.

This refusal to acknowledge the basic truth that an unborn baby is indeed a person allows negligent doctors to claim that damages recoverable for the death of the baby are $0 and damages recoverable by the parents for their loss of consortium are limited to $250,000.

Even if this were fixed and Iowa would recognize an unborn baby as a person as it relates to the wrongful death statute, the leiglsature’s current proposal would cap noneconomic damages for the death of the baby at $1 million.

In other words, the cap puts a maximum monetary value on human life.

Baltimore also shared the story of a baby in Iowa City who had his head crushed during delivery with forceps and a vacuum. The injuries resulted in severe and disabling permanent brain damage. Reports indicate the baby wasn’t receiving enough oxygen to the brain and a C-section should have been performed. The second cause of injury was the use of the forceps, which slipped off the baby’s head twice and resulted in a skull fracture above the left ear. When providers used a vacuum attached to the baby’s head, there was hemorrhaging in the brain.

The baby was diagnosed with ischemic brain injury, cerebral palsy, seizures, facial nerve palsy and skull fracture with subdural hemorrhage after being born.

According to Fred James, a Des Moines lawyer, had the baby been born by C-section there wouldn’t have been any injuries.

That case resulted in a $97.4 million verdict, a verdict that cap proponents call “out of control.” A significant portion of the verdict was for economic damages as the child will likely require 24/7 care for their entire life. The child’s family offered to settle its claims with the OB/GYN clinic for their insurance policy limits of $12 million, the clinic’s malpractice insurance company would not make any offer to settle the case, which forced it to trial.

While this bill would not cap economic damages or punitive damages, it aims to cap noneconomic damages, which would be loss of function of body or mind, pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, etc.

“So on the one hand, oh, $97 million is egregious,” Baltimore said. “Tell that to this child, they’re only worth $1 million. Tell him that. Remember the position of conservatives in this building is that every life, every single life at every single stage, is priceless. We hear that all the time. It’s priceless. But you’re about to put a price tag on — a very small price tag quite honestly. Life is priceless. If you believe it, be consistent about it. Be genuine about it.”


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