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WRONGFUL DEATH & UNBORN PRE-VIABLE FETUS (§§ 6-5-391, ALA. CODE 1975) - STINNETT V. KENNEDY

Stinnett v. Kennedy, [Ms. 1150889, Dec. 30, 2016] __ So.3d __ (Ala. 2016). The Court reverses the judgment of the Jefferson Circuit Court which dismissed a claim alleging wrongful death based on the death of a pre-viable unborn child. The Court also rejected contentions that the defendant physician was due summary-judgment on the wrongful-death claim on lack-of-proof-of-causation grounds, and that the judgment of the circuit court was due to be affirmed on the basis of the doctrine of collateral estoppel since other issues about the defendant physician's provision of care to the mother had been litigated to judgment in a jury trial. In the end, the Court reiterates the holdings of Mack v. Carmack, 79 So.3d 597 (Ala. 2011), and Hamilton v. Scott, 97 So.3d 728 (Ala. 2012), that Alabama's wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability. The test for proximate cause in such a case is not whether the deviation from the standard of care adversely affected probable progression to viability, but rather the health care provider's actions "probably caused the death of the fetus, 'regardless of viability.'" Ms. *38.

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