Mothers can be sued by unborn children injured in car accidents

[betsy]

Mothers can be sued by unborn children injured in car accidents

Last Updated: Thursday, November 3, 2005 | 1:48 PM MT

CBC News

Children who are injured in car accidents while still in the womb will be able to sue their mothers under new legislation to be introduced by the province at the end of November.

The opposition parties fear the legislation – the first of its kind in the country if it passes – might open the floodgates for mothers to be sued for anything they do while they are pregnant.

The insurance industry is concerned what it will do to costs.

Justice Minister Ron Stevens says the legislation will be written narrowly to avoid too many cases going to court. Lawsuits would be limited to the amount of the mother's personal liability.

NDP MLA Dave Eggen says the ruling Tories are trying to appeal to social conservatives by eroding the rights of women.

The Insurance Bureau of Canada says the province is passing the buck onto the industry, which will have to pay for the care of disabled children.

http://www.cbc.ca/canada/calgary/story/200...ce20051103.html

If I'm not mistaken, this case has recently won....but unfortunately, I can't find any link.

If this unborn child had been considered by the courts to be someone who have some rights....and not just a blob....then how does this play with abortion?

[doom_sayer]

yup... leave it to alberta! this province (yes i currently reside here the the graveyard town of medicine hat) is getting to be more and more like the united states all the time. come on everyone! nevermind how ridiculous the reason... sue! sue! sue! while we burn fossil fuels to generate electricity and push for legislation that excludes the poor from decent health care benifits!

[jbg]

If this unborn child had been considered by the courts to be someone who have some rights....and not just a blob....then how does this play with abortion?

This grab for $$$$ by trial lawyers and social conservatives, acting jointly, is highly mischievous. Its purpose seems to be joint and sneaky on two fronts:

1. For trial lawyers they get an expanded and notoriously easy class of plaintiffs to represent, who will "sue" very compliant parents, since the insurance company will be left holding the bag; and
   
2. The "right to life" lobby will get its nose under the tent, asserting the "personhood" of the unborn.
   

This is one area where I do not join the conservatives.

[MightyAC]

Are ideas like this supported by the public in Alberta? If so Alberta shouldn't just be its own nation it should be its own planet.

What's next? death penalty, prohibition, state religion, mandatory bedroom cameras so the government can ensure all sex is with an opposite sex spouse, in the missionary position, stricly for procreation purposes only... Albertan license plates should read..."Welcome to Canada's Utah"

[jbg]

Are ideas like this supported by the public in Alberta? If so Alberta shouldn't just be its own nation it should be its own planet.

Charter anyone, or would the "notwithstanding" clause govern?

[Renegade]

I think the bigger question is what are the obligations of parents to kids, and can they be sued if they don't fulfill the obligations.

Prior to being born, the mother has a set of obligations to the child once she accepts the responsibilty to carry it to term. If she abuses that responsiblity, should she not be made to bear reprecussions?

For example if a mother abuses alcohol while pregnant, and the child is born with Fetal Alcohol Syndrome, should the mother not be charged for negligence?

[Charles Anthony]

For example if a mother abuses alcohol while pregnant, and the child is born with Fetal Alcohol Syndrome, should the mother not be charged for negligence?

No, the mother should not be charged for negligence. The burden of raising her FAS child is enough of a repercussion for her actions.

Oh!!!!! I forgot! We have an almighty State to pick up after ourselves and absolve us of any of our own responsibilities! Silly me!

More practically and along the same lines, should a couple who knows they carry genes for a congenital disorder be charged if they give birth to a child with said disorder??

I know a couple who want kids. However, they know that in all likelihood their potential children will have a fatal inheritable lung disease. Therefore, they are adopting. However, what if the chances were only 50%, would it be negligent for them to reproduce? What would be a cut-off negligence-percentage?? Nobody can define that.

My answer is still the same: No, the mother should not be charged for negligence.

Here is a different way of looking at the situation: should a pregnant mother who drives wrecklessly or drinks alcohol be encouraged by her peers to have an abortion?

[Wilber]

If the mother had been a passenger, she could have sued the driver on behalf of the child but because the mother was driving, the kid was SOL. There's logic for you. While the law won't hold a parent criminally responsible for what they do to a child before it is born, the kid should be able to take civil action in the event they have life long disabilities because of the parents irresponsibility. It's done all the time when a person cannot be convicted beyond a reasonable doubt in a criminal court, the victims then sue for compensation in civil court where the standard of proof is different.

I would include both parents if they were both a party to the behavior which caused the disability. Of course it would have to be shown with a reasonable degree of certainty that is was the parents actions that were responsible for the disability and that they were either negligent or knowingly engaged in the damaging behavior. People like Dave Eggen who have a problem with this and see it as trampling on a womens rights, wouldn't know a victim when they saw one. It's the kid people.

We know someone who is bringing up a disabled grand child. The mother was on drugs during her pregnancy and the father was buying them. The kid is seriously disabled so they can't be bothered with him. They have a responsibility to that child and should not be allowed to walk away from it. The kid should have a way of forcing them to assume at least some of that responsibility.

This is about the living who have been severly damaged by the actions of someone else and as dead people can't sue, I don't see how this could have anything to do with abortion.

[Renegade]

No, the mother should not be charged for negligence. The burden of raising her FAS child is enough of a repercussion for her actions.

Oh!!!!! I forgot! We have an almighty State to pick up after ourselves and absolve us of any of our own responsibilities! Silly me!

The mother has no obligation to raise the child. She can easily opt not to raise the child and hoist that responsibility on to the state, foster system, or adoptive parents. And what of the father? Does he not also pay the price of raising a disabled child, who is disabled as a consequence of anothers action?

Even if we assume the mother raises the child, she does so only for a small part of the child's life. The child is faced a lifetime of disability and potentially poverty as a result of the mother's actions.

In my mind there is no question that the mother should be criminally charged and potentially sued in a civil action. If a 3rd party had caused the damage, there woudl be no question that they would be held liable. The same should be true of the mother.

More practically and along the same lines, should a couple who knows they carry genes for a congenital disorder be charged if they give birth to a child with said disorder??

I know a couple who want kids. However, they know that in all likelihood their potential children will have a fatal inheritable lung disease. Therefore, they are adopting. However, what if the chances were only 50%, would it be negligent for them to reproduce? What would be a cut-off negligence-percentage?? Nobody can define that.

Yes, if a couple carries a known congenitical defect which they pass on to their child, they should also be held liable. If the chances are 50% then they are taking a chance.

In my view the proper way to deal with this is for a couple to have some kind of liability insurance to cover the liability of passing on such a defect. The higher the chance, the higher the premium. The more significant the damage caused by the defect, the higher the premium. Thus couples who have a high chance of passing on defects are discouraged from passing them on.

Here is a different way of looking at the situation: should a pregnant mother who drives wrecklessly or drinks alcohol be encouraged by her peers to have an abortion?

Depending upon the level of recklessness and alcohol, in my view, yes. If there is significant risk to the child, then abortion may be a better option. There is very little difference in this decision than one in which the fetus is found to have birth defects through an untrasound. The only reall difference is that the mother's actions can be the cause.

[jdobbin]

In my mind there is no question that the mother should be criminally charged and potentially sued in a civil action. If a 3rd party had caused the damage, there woudl be no question that they would be held liable. The same should be true of the mother.

I guess you would have to make it a law that all pregnancies be planned then.

In Fetal Alcohol Syndrome, many mother's are unaware until between one and three months that they are pregnant. Many stop drinking as soon as they know they're pregnant. Sorry, damage done already.

I guess that means if you go to Vegas for a week: get pregnant the first day and continue drinking for the rest of the week, you could potentially already have the first signs of fetal alcohol effect in the fetus. Oops. There are no stats on planned versus unplanned pregnancies in Canada. Some say the number could be as high as 50%. That leaves a lot of room for oops.

To be perfectly safe, a mother must stop drinking per-conception. If she doesn't, she could be charged if your law was in place.

[Renegade]

I guess you would have to make it a law that all pregnancies be planned then.

In Fetal Alcohol Syndrome, many mother's are unaware until between one and three months that they are pregnant. Many stop drinking as soon as they know they're pregnant. Sorry, damage done already.

I guess that means if you go to Vegas for a week: get pregnant the first day and continue drinking for the rest of the week, you could potentially already have the first signs of fetal alcohol effect in the fetus. Oops. There are no stats on planned versus unplanned pregnancies in Canada. Some say the number could be as high as 50%. That leaves a lot of room for oops.

To be perfectly safe, a mother must stop drinking per-conception. If she doesn't, she could be charged if your law was in place.

While generally all pregnancies may not be planned, pretty much all births are. Once a mother finds out she is pregnant, she makes a decision on whether to carry the pregnancy to term. The abuse she has put her fetus through during the time she has unknowlingly been pregnant should factor into that decision.

Personally I wouldn't hold a mother criminally liable for damage if she drank at a time where she didn't know she was pregnant. However if she continued to drink after she knew she was pregnant then she shoudl be criminally charged.

[jdobbin]

While generally all pregnancies may not be planned, pretty much all births are. Once a mother finds out she is pregnant, she makes a decision on whether to carry the pregnancy to term. The abuse she has put her fetus through during the time she has unknowlingly been pregnant should factor into that decision.

Personally I wouldn't hold a mother criminally liable for damage if she drank at a time where she didn't know she was pregnant. However if she continued to drink after she knew she was pregnant then she shoudl be criminally charged.

Or put into protective custody when they are pregnant as the case in Winnipeg demonstrated. I can't remember what the final legal ruling on that was.

[Wilber]

Or put into protective custody when they are pregnant as the case in Winnipeg demonstrated. I can't remember what the final legal ruling on that was.

I believe the ruling was that the state had no right to interfere. She could consume all the drugs she wanted and the kid got a life sentence to the result.

[Renegade]

Or put into protective custody when they are pregnant as the case in Winnipeg demonstrated. I can't remember what the final legal ruling on that was.

It would be doubtful that the state could hold her unless what she was doing was illegal, hence additional justification to criminalize such behaviour.

[jbg]

If the mother had been a passenger, she could have sued the driver on behalf of the child but because the mother was driving, the kid was SOL. There's logic for you.

The difference is that if the mother is the driver she is, in effect, suing herself, and turning over the bill for "damages" to the insurance company.

That I call a racket, not justice.

[jefferiah]

I am a right-to-lifer myself but I would stand by JBG's opinion here. I think a lot of lawsuits are pretty far-out and this is definitely one of them. You can sue for almost anything now. Gimme gimme gimme.

[Wilber]

The difference is that if the mother is the driver she is, in effect, suing herself, and turning over the bill for "damages" to the insurance company.

That I call a racket, not justice.

Justice for who, the mother or the child? Should the child suffer for it because it is the mother who screwed up instead of say, the next door neighbour they were hitching a ride with? It's an odd situation but the bottom line is, if the parents can't afford to pay, either the tax payer or an insurance company will have to, or the kid goes without the services it needs to live.

[jbg]

The difference is that if the mother is the driver she is, in effect, suing herself, and turning over the bill for "damages" to the insurance company.

That I call a racket, not justice.

Justice for who, the mother or the child? Should the child suffer for it because it is the mother who screwed up instead of say, the next door neighbour they were hitching a ride with? It's an odd situation but the bottom line is, if the parents can't afford to pay, either the tax payer or an insurance company will have to, or the kid goes without the services it needs to live.

There's something you conceptually don't understand. The mother's assets in no way are being tapped to make up for her carelessness towards her unborn child. The insurance companies' are. The suit may be styled, for example, Mary Beckwith as Mother and Legal Guardian of James Beckwith v. Mary Beckwith and the subject of the suit would be injuries while she was pregnant. She, in her capacity as "defendant" would notify her insurance carrier, which would have no choice but to defend and likely pay. The insurance company may have a most unccoperative "client", obviously.

That's why I call it a racket.

[sunsettommy]

What if the mother just aborts the injured fetus?

Abortion is legal is it not?

[sunsettommy]

The difference is that if the mother is the driver she is, in effect, suing herself, and turning over the bill for "damages" to the insurance company.

That I call a racket, not justice.

Justice for who, the mother or the child? Should the child suffer for it because it is the mother who screwed up instead of say, the next door neighbour they were hitching a ride with? It's an odd situation but the bottom line is, if the parents can't afford to pay, either the tax payer or an insurance company will have to, or the kid goes without the services it needs to live.

Well if the mother just abort the unborn damaged child.Would that mean she stayed out of the money trough?

[Wilber]

Well if the mother just abort the unborn damaged child.Would that mean she stayed out of the money trough?

You would have to know the unborn child was damaged.

There's something you conceptually don't understand. The mother's assets in no way are being tapped to make up for her carelessness towards her unborn child.

You can't seem to get past the mother and deal with the real victim, the child.

If you sue someone because they were negligent or somehow cause you harm and their insurance company pays, their assets aren't being tapped either. If someone runs their car into yours, it is their fault and you are compensated by their insurance company, their assets aren't tapped. That's why we buy liability insurance. If find it ironic that under our law, a child can get compensation from anyone but their parents when they are the victim of gross negligence, neglect or criminal behavior.

Merry Christmas all.

[jbg]

You can't seem to get past the mother and deal with the real victim, the child.

If you sue someone because they were negligent or somehow cause you harm and their insurance company pays, their assets aren't being tapped either. If someone runs their car into yours, it is their fault and you are compensated by their insurance company, their assets aren't tapped. That's why we buy liability insurance. If find it ironic that under our law, a child can get compensation from anyone but their parents when they are the victim of gross negligence, neglect or criminal behavior.

Merry Christmas all.

Do you enjoy having your pockets picked by greedy personal injury lawyers? I'm a lawyer, but I also purchase car insurance. I don't enjoy it at all.

[guyser]

jbg, one thing not touched upon in this debate. Perhaps you have better info as a lawyer.

Most of these "cases" of a child suing the parent for neglect in the womb will emanate from the class of people who will not , usually, have any insurance at all. Be it tenants, auto , CGL or what have you. Those in society who are functioning alcoholics and or drug abusers , will have assets available and insurance money, (likely that is.)

I am talking more in a broad sense versus just the auto angle.

What about the statute of limitations (two year for auto in Ont) ? A parent would essentially, as you posted, be suing herself (him too) as guardian of injured plaintiff. The threshold a parent would have to establish (level of childs injuries, future expectations) would be very base in scope due to the age of the plaintiff (under 2 yr old) since many years are often needed to effectively diagnose long term injury? But as I re-read my own post, it seems I missed something , and that is the time it takes to get before the court which could be as many as 5 years in which case discovery would be relatively certain for injuries would it not?

Let me take it to an example. Mom is three months pregnant , and she drives and crashes the car. Single car accident. Baby is born some six months later and the baby exhibits injuries due in part to the accident. Sometime in the next two years she decides to sue for the baby.

Okay...here are my questions. Since the plaintiff is a minor, the mom must act as guardian , but mom is also the defendant. Who would the insurance company represent? Since her policy states she turns over all rights to the insurance company to defend and proceed/settle , does she not qualify for legal rep as both plaintiff and defendant?

[fellowtraveller]

Are ideas like this supported by the public in Alberta? If so Alberta shouldn't just be its own nation it should be its own planet.

What's next? death penalty, prohibition, state religion, mandatory bedroom cameras so the government can ensure all sex is with an opposite sex spouse, in the missionary position, stricly for procreation purposes only... Albertan license plates should read..."Welcome to Canada's Utah"

Stuff like this just makes me laugh at the inherent bigotry.......

The legislation is supported and specifically allowed by the Supreme Court of Canada.......mighty AC likely sees them as a bunch of rednecks too....

And I wonder why the OP selected a story over a year old, instead of posting the most recent events?

[jbg]

jbg, one thing not touched upon in this debate. Perhaps you have better info as a lawyer.

Most of these "cases" of a child suing the parent for neglect in the womb will emanate from the class of people who will not , usually, have any insurance at all. Be it tenants, auto , CGL or what have you. Those in society who are functioning alcoholics and or drug abusers , will have assets available and insurance money, (likely that is.) I am talking more in a broad sense versus just the auto angle.

Those cases will be highly unlikely to be brought. Drug addicts and alchoholics probably don't have much in the way of assets, so even foster or adoptive parents would be unmotivated to sue the birth mother. Presumably, the purpose of these spurious suits is to unlock insurance coverage that the carrier would be most unwilling to pay out.

What about the statute of limitations (two year for auto in Ont) ? A parent would essentially, as you posted, be suing herself (him too) as guardian of injured plaintiff. The threshold a parent would have to establish (level of childs injuries, future expectations) would be very base in scope due to the age of the plaintiff (under 2 yr old) since many years are often needed to effectively diagnose long term injury? But as I re-read my own post, it seems I missed something , and that is the time it takes to get before the court which could be as many as 5 years in which case discovery would be relatively certain for injuries would it not?

Let me take it to an example. Mom is three months pregnant , and she drives and crashes the car. Single car accident. Baby is born some six months later and the baby exhibits injuries due in part to the accident. Sometime in the next two years she decides to sue for the baby.

New York's statute of limitations is tolled for up to ten years due to infancy (or the period of disability plus three years for medical malpractice). The devil on this issues is in the details on how the statute, and the infancy disability toll is drafted.

I am talking more in a broad sense versus just the auto angle.

Okay...here are my questions. Since the plaintiff is a minor, the mom must act as guardian , but mom is also the defendant. Who would the insurance company represent? Since her policy states she turns over all rights to the insurance company to defend and proceed/settle , does she not qualify for legal rep as both plaintiff and defendant?

The insurance company "represents" the mother in her individual capacity, since that is how the insurance is taken out.