John G. Browning Apr. 9, 2013, 10:42am

Recently, a case came to my attention about lawyers embroiled in a national controversy.

Defense attorneys were defending Catholic Health Initiatives, the owner of St. Thomas More Hospital in Canon City, Colo., in a medical malpractice case.  The facts were tragic; 31-year-old Lori Stodghill was 28 weeks pregnant when she arrived at the hospital’s emergency room on New Year’s Day 2006, vomiting and complaining of shortness of breath. She went into cardiac arrest in the waiting room, and died shortly after, her unborn twin boys perishing with her.

Her husband, Jeremy Stodghill – stricken with grief and caring all alone for the couple’s 2-year-old daughter – filed a medical malpractice lawsuit against the hospital and Catholic Health Initiatives, seeking to hold them responsible for the wrongful deaths of Lori and her unborn children.

Roughly two years into the litigation, the lawyers defending the case advanced an argument that shocked Jeremy Stodghill, coming as it did from attorneys for a Catholic hospital.  They argued that under Colorado law, a fetus is not a person until it is born alive; since the Stodghills’ twin boys were stillborn – dead when they were removed from Lori’s lifeless body – there could be no legal cause of action and no recovery for their deaths.

The court agreed with their argument, and dismissed that portion of the case.  The court ruled against Stodghill on his late wife’s claims for other reasons. Stodghill has appealed his case to the Colorado Supreme Court, in the face of daunting circumstances.

After winning, the hospital and doctors were entitled to recover their legal fees from him, and they’ve pursued this claim aggressively.  They’ve attempted to garnish Stodghill’s wages to satisfy over $118,000 in legal fees, causing the struggling single father to file for bankruptcy.

The defendants have offered to drop their claim for legal fees if Stodghill agrees to drop his appeal, but he’s not budging.

Stodghill, you see, wants answers, and not just from the Colorado Supreme Court.  He wants an explanation from the Catholic Church about why Catholic Health Initiatives – whose practices are supposed “to ensure fidelity and faithful witness to the teachings of the Catholic Church” – should be permitted to use defense tactics that are contrary to the “life begins at conception” teaching of the Catholic Church.

The Colorado Catholic bishops are reviewing the apparently inconsistent position that’s been taken in the Church’s name, but in the meantime the case raises ethical questions for lawyers as well.

What is a lawyer to do when he is torn between the teachings of his faith and the duty he owes a client to be a zealous advocate and use the legal weapons available to him to defend that client?  And what of the greater moral responsibility that may exist?

It is an issue that particularly resonates for me, because I found myself in a similar quandary years ago.  A client of mine was facing a lawsuit stemming from a motor vehicle accident: a manager driving a company vehicle had run a red light and broadsided a car driven by a young woman who was 8 ½ months pregnant.  She was injured, but made a full physical recovery; unfortunately, however, she lost the baby.

Her lawyer was seeking not just compensation for the physical injuries and emotional trauma of the young mother, but was asserting a wrongful death cause of action on behalf of the unborn child as well.

At the time, this claim flew in the face of decades of well-established Texas law, which held that while a mother who’d lost an unborn child due to someone else’s negligence might have a claim for her own emotional distress, if the fetus was not born alive (however briefly) there could be no claim for its conscious pain and suffering and wrongful death.

Virtually every appellate court considering the issue had refused to create a new cause of action on behalf of the unborn.  But there were rumblings here and there on the legal landscape – there was talk of possible legislation by pro-life lawmakers that would grant such rights to fetuses, and an outlier decision by the Fort Worth Court of Appeals in a medical malpractice case had held – contrary to existing Texas law – a wrongful death claim could be brought for the loss of an unborn, but viable, child.  That case settled without the parties asking the Texas Supreme Court to weigh in on the issue.

In the meantime, though, I was torn both personally and professionally.  On the one hand, I was a methodical, calculating defense attorney who knew that I was likely to win a summary judgment from the trial judge on any claims involving the unborn child – a judgment that might go up on appeal where a panel of appellate justices could either side with every other appellate court and  dispose of the case, or choose to follow the lone appellate court that had arguably rendered a decision that owed more to emotion than to legal precedent.

But on the other hand, I was not just a lawyer but a devout Catholic who believed then and believes now that life begins at conception.  And it wasn’t simply being steeped in years of Catholic education or blind adherence to Catholic dogma that troubled me about this case.

I had seen the photos of the deceased from a memorial service held by the family, a blue blanket tenderly wrapped around a body virtually indistinguishable from that of a newborn baby.

In the background of some of these photos, I’d seen details that the cold calculus of an accident report could not convey, like the freshly-decorated nursery that would remain empty and silent, the toys that would never be played with, and the baby monitor that would never broadcast a hungry cry or a gleeful laugh.

More importantly, I knew the grief that young mother felt.  My wife and I had experienced the heartache of miscarriages – the loss of life planned for, welcomed, and eagerly anticipated.  We had felt our world fall apart to the beat of a fetal heart monitor, seeing a life we’d created end with agonizing precision as the heartbeat slowed and then stopped with stunning finality.

We’d endured the emotional numbness of each aftermath, complete with the well-meaning but awkward fumblings of friends and family members struggling with what to say.  Every “these things happen for a reason” or “you can try again” is like salt in the open wound for a parent who has experienced such a loss.

My professional dilemma was shared by my client’s in-house counsel, an Irish Catholic like myself.  Because of this, he was receptive to the solution that I ultimately crafted, one that would satisfy both my ethical obligations as a defense attorney and my moral obligations as a person of faith.

A reasonable settlement was reached, one that would attempt to compensate the young mother for not only the physical injuries but for the emotional ones that had yet to heal.

Her attorney acknowledged that compensating his client was his most important goal, and that he was likely on the losing side of the legal argument for the unborn child.  But we agreed on an unusual resolution on that front; we had the court appoint a lawyer, called a “guardian ad litem,” to represent the interests of the unborn child.

He reviewed the settlement terms, as well as the current state of the law and how it didn’t permit a cause of action for the fetus, and he recommended that the court approve the settlement that had been reached.  The case concluded, with clients on both sides satisfied that the right result had been achieved.

In recommending this particular course of action, I had warned my client that regardless of what the courts had done in the past, conservative Texas legislators could one day pass legislation that would provide for a cause of action in the event of injury or death to a fetus.

Sure enough, such a law was passed not long thereafter.

Had the case I defended been brought in the wake of this change in the law, it would have been more difficult and expensive to resolve.  But I can look back on this case, secure in the knowledge that I successfully navigated some uncharted waters for my client.  I had remained true to my professional obligations, while remaining true to my faith as well.

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