West Virginia Record

Sunday, March 29, 2020

State Supreme Court says ectopic embryo not a 'person' in wrongful death statute

State Court

By Kyla Asbury | Feb 6, 2020


CHARLESTON – The West Virginia Supreme Court of Appeals answered one of two certified questions in a case brought before the court regarding an etopic pregnancy.

The question the court chose to answer was: Does the term "person" as used in the West Virginia Wrongful Death Statute encompass an ectopic embryo/fetus?

"Upon our consideration of the parties’ briefs and oral arguments, the appendix record submitted, and the relevant legal authorities, we answer Question B in the negative and conclude that the term 'person' as used in W. Va. Code ... does not include an ectopic embryo or an ectopic fetus," Justice Evan Jenkins wrote in the majority opinion.

Jenkins wrote that the court's answer to this question renders the first question moot.

Justice Tim Armstead dissented and authored a separate opinion.

Angie Damron was an obstetrics patient of Dr. Marwan F. Saleh in 2013 and presented to Logan Regional Medical Center in labor with her second child on Nov. 13, 2013.

Saleh delivered the child via cesarean section and because Damron did not want to have any more children, Saleh performed a bilateral tubal ligation for permanent sterilization purposes.

Three years later, on Dec. 23, 2016, Damron presented to the emergency department of Beckley Appalachian Regional Hospital with abdominal pain, diarrhea, nausea and vomiting. Testing was performed and it was discovered that Damron was pregnant, but an ultrasound showed that there was no intrauterine pregnancy.

The radiologist recommended a close follow-up to determine whether the HCG levels were indicative of early gestation or ectopic pregnancy and Damron was discharged with instructions to return for repeat evaluation of her human chorionic gonadotropin (HCG) level.

Further testing revealed a live ectopic pregnancy in Damron's left fallopian tube that was somewhere around six weeks old and had a heartbeat of 142 beats per minute.

"The parties agree that this ectopic pregnancy, which was located in Mrs. Damron’s fallopian tube, had no chance of resulting in a live birth and, if allowed to continue, would result on Mrs. Damron's death," the opinion states. "Due to the certainty that continuation of this pregnancy would result in Mrs. Damron's death, she was admitted to the hospital and underwent a left salpingectomy, i.e. removal of the ectopic embryo."

Damron later filed a lawsuit against Saleh as the administratrix of the estate of the ectopic embryo, known as "Baby Damron" and alleged that Saleh failed to provide her with sufficient information to obtain her informed consent to perform the tubal ligation.

"The Damrons now ask this court to extend the right to bring a cause of action for wrongful death beyond what was recognized in Farley and to allow such a claim on behalf of an ectopic embryo that, as the parties agree, had no chance of resulting in a live birth," the opinion states.

The court found that the term "person" does not include an ectopic embryo or an ectopic fetus.

In his dissenting opinion, Armstead wrote that he believed an ectopic embryo could be defined as a person under the wrongful death statute.

"Because I believe these authorities weigh in favor of inclusion of an ectopic embryo within the meaning of “person” as contemplated by the statute, I respectfully dissent," Armstead wrote.

Armstead wrote that the majority opinion has now declared that, in all cases, because the embryo failed to implant in the uterus as a healthy pregnancy due to its status as an ectopic pregnancy or ectopic embryo, the unborn child has lost its status as a “person” under the wrongful death statute. 

"In light of the language of the wrongful death statute, our holding in Farley, as well as the language of subsequent enactments of the Legislature, I believe that recognition of an ectopic embryo or ectopic fetus as a 'person' under the wrongful death statute is the result which is most consistent with the purposes of such Act," Armstead wrote.

West Virginia Supreme Court of Appeals case number 18-1112

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West Virginia Supreme Court of Appeals