An Ohio appellate court recently held that Ohio law does not create a standard of care for the humane disposal of a miscarried or stillborn fetus at, or under, 20 weeks gestation. Further, the court refused to create a cause of action for the alleged mishandling of a miscarried or stillborn fetus at, or under, 20 weeks gestation.
In Walker v. Firelands Community Hospital (2007), 6th Dist. No. E-06-023, 2007-Ohio- 871, the plaintiffs filed a class action lawsuit against Firelands Community Hospital and its employee. The plaintiffs had either miscarried or delivered a stillborn fetus at the hospital between 1988 and 1996. Hospital policy provided that fetuses at, or under, 20 weeks gestation would be cremated. For religious reasons, the hospital’s histologist technician decided to store intact fetal specimens in the hospital morgue.
The plaintiffs alleged: 1) violation of Ohio’s statutory laws, which imposed a duty regarding the disposal of fetuses; 2) tortuous conduct by mishandling fetuses; 3) fraud by omission (against the hospital, only); 4) negligent infliction of emotional distress; 5) intentional infliction of emotional distress; and, 6) punitive damages.
Plaintiffs specifically claimed violations of Ohio Revised Code Sections 1713.29 and 3701.341. Revised Code §1713.39 dictates that an entity is liable if it has unlawful possession “of the body of a deceased person.” The court found that a fetus with a gestational age of twenty weeks or less is not a “person” within the meaning of the statute. In so concluding, the court referred to the United States Supreme Court’s finding in Roe v. Wade that the word “person” does not include the unborn. The Ohio appellate court limited its discussion of Roe v. Wade to the determination that a fetus at, or under, 20 weeks gestation is not a “person.”
The court also found that the purpose of R.C. §3701.341, titled “Public Health Council Rules on Abortion,” is to permit the promulgation of rules relating to abortedfetuses. Therefore, the statute does not establish any duty regarding the humane disposal of a stillborn or miscarried fetus at, or under, 20 weeks gestation.
As for Plaintiffs’ claim that the hospital and its employee mishandled fetuses, the court recognized that a cause of action exists for the intentional mishandling of a dead body. However, the court declined to extend this cause of action to include the mishandling of a fetus that is at, or under, 20 weeks gestation.
Thus, the Walker appellate court would not create the tort of intentional, negligent or reckless interference with a dead body that includes a fetus at, or less than, 20 weeks gestation. Accordingly, the court concluded that appellant could not rely on this tort in order to make a claim for negligent infliction of emotional distress without establishing that she was a bystander to the disposition of fetal tissue or that she experienced fear associated with physical consequences to herself.
Ohio hospitals should be aware of the Walker decision when revisiting or updating their policy for the disposal of fetal tissue. Notably, the Walker decision does not expressly preclude claims for the inhumane disposal of an aborted fetus, or for the inhumane disposal of a stillborn fetus over 20 weeks gestation.
Lastly, it bears mentioning that the Walker decision limits potential claims against entities that host and/or direct in vitro fertilization programs, or otherwise handles embryos, for any alleged “mishandling” of the embryo.
For more information about this decision or to discuss any related issues, please call any member of Reminger & Reminger’s Medical Malpractice Group.
