In April 2011, Melanie Foster went to her doctor’s office complaining that she had missed her menstrual period for five months after having an IUD birth control device implanted.
Her doctor, Dr. Corrinne de Cholnoky, agreed to remove the device but failed to perform a pregnancy test before she did; and now she is being sued for causing the death of Foster’s baby, according to a report in the Connecticut Post.
According to the lawsuit, the Stamford, Connecticut doctor did not perform a pregnancy test on Foster before she removed the IUD using forceps. The doctor ruptured the woman’s fetal membrane, causing damage to Foster’s unborn child, according to the lawsuit.
The local news reports more:
An ultrasound later determined Foster was 20 weeks pregnant. Foster and her husband were advised there was a high risk of losing the pregnancy but she refused to have an abortion, the lawsuit states.
On April 17, 2011, Foster arrived at Norwalk Hospital suffering from maternal fever and a high white blood cell count, the suit states. Her doctor there, concerned that she could die, decided to induce labor.
Annalise Lili Foster was born at 6:50 in the morning and died less than two hours later.
De Cholnoky agreed to settle the case out of court Tuesday, according to the news report. The case was scheduled for trial in front of a Superior Court jury.
The doctor’s lawyer originally tried to get the case thrown out of court, citing Roe v. Wade and arguing that the Melanie and Floyd Foster’s unborn child was not viable yet and therefore not a person, the Associated Press reported.
However, in October, “Superior Court Judge Michael Kamp ruled it is not the age of the fetus but the fact that it was born alive that matters,” according to the local news report.
“Where the doctors refer to the birth of a baby, its life and eventual death, one would conclude that the baby was a person, and that person died,” the judge wrote. “No Connecticut law provided by the defendants or discovered by the court suggests that there is a viability requirement for infants born alive when they were not viable fetuses immediately prior to their birth.”
A New York court recently ruled differently in a similar case. The New York Court of Appeals ruled that a Long Island woman who killed her baby in a car accident could not be convicted because her baby was not born at the time of the fatal injury, LifeNews previously reported. The baby girl was delivered alive by C-section after the head-on collision and died six days later.