Court documents tell us that on May 9, 2012 Kimberly Stinnett’s, a resident of Alabama, found out she was pregnant. Two days later, on Friday, May 11, Ms. Stinnett had abdominal cramping and fever and the OB/GYN covering calls, Dr. Kennedy, instructed her to go to the emergency room . Upon admission Ms. Stinnett reported that her last menstrual period was April 1, 2012, so she was approximately five weeks and 5 days pregnant. Her medical history was significant for 2 prior miscarriages and a prior ectopic pregnancy in 2010, which resulted in the rupture and removal of her left fallopian tube (salpingectomy).
An ultrasound in the emergency room revealed fluid in the endometrial cavity that “could be a gestational sac” but the court records do not describe this as definitive nor do they list the size. There was no yolk sac, fetal pole, or cardiac activity. Ms. Stinnett’s beta-hCG was 18,473. At this beta-hCG there should have been a yolk sac. If there was an intrauterine pregnancy they available evidence indicated it was not normal.
Dr. Kennedy was concerned about ectopic pregnancy or an inevitable abortion (an abnormal pregnancy destined to miscarry). Her patient had one of the biggest risk factors for ectopic pregnancy, a previous ectopic pregnancy. Failure to promptly diagnose and treat an ectopic pregnancy can cause severe blood loss and even death. If not expertly treated it could also result in the loss of her one remaining fallopian tube which would require in vitro fertilization for any subsequent pregnancies.
Dr. Kennedy did a laparoscopy to look for an ectopic pregnancy and did not see one. To not do this would have been malpractice. She also did a dilation and curettage (D & C) to confirm the intra-uterine placement of what the evidence suggested was a non viable pregnancy. If the pregnancy was in the uterus then no further treatment for an ectopic was needed.
The pathology results from the D & C showed products of conception, so a pregnancy in the uterus (one destined to fail). Dr. Kennedy still recommended methotrexate operating under the assumption that there might be an ectopic. It is possible for there to be a pregnancy in the tube and the uterus, this is called a heterotopic. She was concerned enough that she recommended methotrexate, a cancer drug and a recommended therapy for ectopic pregnancy. This was given on May 13, so at 6 weeks gestation.
On May 14 another ultrasound was performed (likely looking for the ectopic) and a yolk sac was seen. Medically this means that Dr. Kennedy missed some of the abnormal intrauterine pregnancy with the D & C. Ms. Stinnett subsequently miscarried on June 8, 2012. She sued in civil court for wrongful death of her “previable unborn child” claiming she should never have received the methotrexate. A lower court judge dismissed her claim, but all eight justices of the Alabama Supreme Court agreed they should overturn that ruling. Justice Tom Parker wrote a special concurring opinion that “unborn children are protected by Alabama’s wrongful-death statute from the moment life begins at conception.” Parker has a well documented mission to outlaw Roe V. Wade.
This is wrong on so many levels.
With a beta hCG of 18,473 a yolk sac should have be seen on the initial ultrasound on May 11th. In fact, 99% of the time a yolk sac should be seen with a beta hCG of 17,716. The gestational sac wasn’t normal looking so with that pregnancy hormone level and the absence of a yolk sac it is pretty hard to conclude this pregnancy was viable. Remember the fetal pole cardiac activity bills? We often see cardiac activity at 6 weeks, so an irregular gestational sac at 5 weeks and 5 days by with no yolk sac is itself is very abnormal.
I asked 3 reproductive endocrinologists what the chances of a pregnancy being normal with a beta hCG of 18,473 and no yolk sac and they all looked at me like I was nuts.
A D & C can miss part of a pregnancy. It can even sometimes miss the whole thing, especially early on. The tissue is very small and you are operating blindly.
Methotrexate can cause abortions, it is about 69% effective by day 21 after administration. Ms. Stinnett actually completed her miscarriage outside of this window.
There is zero evidence in the court documents supporting the idea that the pregnancy was normal and no proof that the methotrexate was the cause of the miscarriage. Facts are obviously irrelevant in Alabama.
And then there is the issue of calling a 6 week pregnancy a previable child. It looks like this. The big circle is the gestational sac, the little circle is the yolk sac, the line between the markers is the fetal pole.
However, the pregnancy based on the information in the court documents didn’t look like this as it appeared very abnormal.
A reasonable OB/GYN would conclude given this scenario that there could not be a viable intrauterine pregnancy. The issue Dr. Kennedy had to figure out was if there was also an ectopic pregnancy. She erred on the side of caution and treated. She did the best with the information that she had.
I don’t have all the data. I don’t have the ultrasound images to review nor the size of the gestational sac. If the sac were 25 mm or greater and empty (so no yolk sac) there would be a 100% chance of miscarriage. I also don’t know how much pain Ms. Stinnett was in, how much she was worried about losing her remaining tube, and a variety of other factors that go into making the best medical decision. However, I see no proof that Dr. Kennedy caused Ms. Stinnett to miscarry.
Allowing this lawsuit to go forward is frightening. If I practiced in Alabama I would want another opinion before doing a D & C for an inevitable abortion or fetal demise. In rural communities that could lead to significant delays and some women with ectopic pregnancies will suffer (never mind the suffering caused by the delay for the women miscarrying). It will also increase the cost for patients and insurers as more ultrasounds will be done to satisfy a legal fetal fetish and people will have to pay for unnecessary second opinions.
The ruling also sets a chilling precedent regarding viability and fetal personhood. If Ms. Stinnett is successful in her case, and I’m pretty sure there will be some top anti choice lawyers helping her out, then that could set the wheels in motion to overturn Roe v. Wade.
It’s 2017. Facts are completely irrelevant to medicine and pregnant people and their doctors are at the whim of ignorance.
What a time to be alive.
- Updated 10:40 pm January 5 to correctly reflect the fact that there were no products of conception on the D & C
Dr. Jen Gunter 
Christ that’s scary
Actually, the facts aren’t really relevant at this point in the lawsuit. The case was dismissed on a 12b6 motion, which is basically, “failure to state a case.”
Imagine that I’m sued for riding a terribly ugly bicycle. My neighbor hates it, it’s super ugly. He’s got an expert to prove that my bike is super ugly. At this point in the case, I can file a 12b6 motion pointing out that ugly bikes are not tortious. Expert, or no, I win. The case gets dismissed.
The lower court looked at Alabama law and said there were simply no facts, ever, that could support a wrongful death claim when a doctor is treating a pre-viable fetus. None. That the case is as groundless as suing over an ugly bike. The Supreme Court said that there can be facts that support a wrongful death claim. Skip down to the standard of review section of the case for how the court is required to look at facts.
“The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief.”
The court reads the complaint, assumes everything written in the complaint is 100% true, and determines if there is ANY set of facts that could enable a winning lawsuit. It’s a test of whether the lawyer can write a complaint appropriately, not whether the doctor actually did anything wrong.
There is an argument about whether there SHOULD be a wrongful death cause of action for a pre-viable fetus, but the court points out, among other things, that Alabama allows injury torts for pre-viable fetuses, so it would be weird if a greater injury were excluded. 40 states allow wrongful death for fetuses, 27 require viability. 26 now, I guess. So, yes, this does extend the threat of anti-Roe suits. In other words, the court could be just as wrong as you suggest, but not because of the hCG levels or yolk sacs or any of the particular evidence in this case. If they’re wrong, it’s because the law shouldn’t have a wrongful death action for pre-viable fetuses, ever.
Later in the case, this doctor will file a motion for summary judgment which will argue that, after taking all discovery, there exists in this instance no evidence to suggest wrongdoing. At that point, all the things you’ve pointed out here will come into the case. Hopefully, the court will get it right at that point in the particulars of this case.
So your point is that because Alabama is batshit fascist insane and passes insupportable ‘laws’ to prove it this sort of unconscionably frivolous, outrageous, and destructive ‘lawsuit’ is acceptable legally, even though the lower court made the OBVIOUS decision that the case is groundless and absurd? Please. The problem lies in Roy Moore’s clutch of gunsucking, inbred Neanderthals–oh, I’m sorry, the Alabama ‘supreme court’–who are determined, like Moore , to BREAK the law whenever it does not suit them.
My point is that if this case is unacceptable, it’s because Mack v. Carmack and Hamilton v. Scott failed to take into account an exception in the Homicide Act, and not because of anything Dr. Kennedy did or didn’t do.
And, actually, I think I was wrong above when I said that this changes Alabama’s laws. Reading more carefully, it appears Mack and Hamilton had already allowed suits against physicians for the death of previable fetuses. Dr. Kennedy was the one arguing for a change in the law.
Look at the arguments Dr. Kennedy’s lawyers put before the court. They didn’t argue that Dr. Kennedy did nothing wrong, they argued things like:
“Dr. Kennedy points out, however, that the amendment to the Homicide Act also provided for an exception to criminal liability for the death or injury of an unborn child caused by an unintentional error on the part of the pregnant woman’s treating physician.”
Because at this point in the case, the only thing the court does, the only thing it is ever allowed to do, is read the complaint, assume it is ALL TRUE and see if the law could apply.
Facts are relevant – it appears that the motion to dismiss was granted before discovery ensued in the case. Further, even though complications are known to occur and do occur every day, the question should be whether, given the particular circumstances of any given case, whether the complication could and should have been avoided. For example, death is a recognized complication from general anesthesia but death from anesthesia can also occur as a result of negligence, say, the wrong gas. Just because the complication is recognized is not good enough – the complication must be unavoidable and if it is avoidable the question should be asked whether the physician did everything he/she could have reasonably done to avoid it? If not, that is negligence because after all, if the complication is known to exist then the physician should be on the lookout for that complication and take steps to avoid it.
The other relevant fact, George, is whether there was a death, let alone the plausibility of wrongful death, in a case of no yoke sack, no fetal pole and no cardiac activity.
Not to mention, Dr. Kennedy’s priority was, rightfully, to keep Ms. Stinnett alive and preferably capable of carrying a viable pregnancy in the future. Both of which she seems to have accomplished, only to be punished based on the virtually nil possibility her actions resulted in the abortion of a viable pregnancy.
It’s like being accused of arson when there is no evidence there was ever a building. Let alone one that not only burned down, but was set on fire by deliberate or neglectful actions.
Excellent analogy!
I like your analogy of the building being burst down before it was even built. BTW it was not a deliberate act – it was negligence – that was my point – known risk? – I say BS – if known risk and it can be prevented with reasonable care – then it is negligence.
Actually, it’s being accused of arson when there was no evidence of a building, while preventing a bomb to go off on the property that would prevent anyone from living there ever again.
I’m always so glad when a man can explain the facts of gestation to women — especially women who are physicians specializing in obstetrics, like Dr. Gunter. Thank you.
Scary.