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Defining Life, Defining Wrongful Death Cases

Some cases become famous for very obvious reasons. More often, experienced Charlotte trial attorneys recognize that some of the most important cases actually reflect extremely hard work, and unique factors. A medical malpractice suit, where Norma D.’s baby was delivered, but stillborn, is one of those ‘Famous Firsts’ cases, for very obvious reasons. Less obvious, though, are the actual issues debated by the North Carolina Supreme Court, and the real-life client issues that are often passionately protected by a Charlotte trial attorney. Norma’s child had been apparently healthy, and was expected to be born full-term on October 10. Troublingly, the child had not been born by October 26. Nevertheless, an exam at that time showed that the baby still had a healthy heartbeat. Within four days, the child was stillborn.

In fact, the legal issues involved in Norma’s case had been in front of the North Carolina Supreme Court, two other times, in two different cases… twenty years earlier. This meant that the Supreme Court was ready to hear a possible challenge to the status quo of wrongful death and a fetus. As the Charlotte trial attorney presented the case: did the word “person” in the Assembly’s wording of the wrongful death act include a viable fetus?

Wrongful death has a long legal history as a valid claim in the Western legal system. It started in old English history (first in 1808), where many partners had a right to claim for damages if their family member (usually meaning spouse) died. It wasn’t always clear in history who else in the family might be covered by wrongful death statutes. Things have changed so much in terms of wrongful death legislation, that people now routinely expect wrongful death to cover most deaths of anyone close to us that we care for. In fact, the standard is very different from state to state. As the case here shows, North Carolina also fairly recently rewrote its “wrongful death” laws. It’s another reason to seek the advice and help – in these most stressful of medical malpractice cases —only of a truly experienced and talented Charlotte trial attorney.

The first North Carolina wrongful death law was adopted in 1854. Nevertheless, until 1946, very few states allowed any recovery to anyone who had a fatal prenatal injury. After World War II, that notion was challenged, and changed, all across America.

So now, two hundred years later, it’s largely taken for granted that the death of a child should always be covered by wrongful death laws in North Carolina. As noted, the viable fetus question is much more recent, and in this State involves cases only since the 1980’s.

II. The Face of A Law

The North Carolina Supreme Court admitted that “on the face of it,” the State’s law just did not address the issue whether not a viable fetus was protected by the wrongful death provisions of NC law. At the same time, a Charlotte trial attorney could argue that “legislative inaction” [Emphasis Added] is really a “weak reed upon which to lean,” as well as a “poor beacon” to try to follow in figuring out what the North Carolina Assembly may have meant.

The Supreme Court agreed with the Charlotte trial attorney: “We cannot assume that our legislators spend their time poring over appellate decisions so as not to miss one they might wish to correct.” Notably, this also means that the court will take time to “pore over” legislative discussions. In that way, the Charlotte trial attorney pointed out that the Court itself acknowledged “we have not found any evidence that the legislature has ever considered a particular problem before us” such as in Norma’s case. This obliged the Charlotte trial attorney to also employ arguments based on more than the words of the wrongful death statute itself (called the face of the law). This meant that public policies, and the actions (or inaction) and studies of the Assembly, were also going to be the important considerations. 

III. Interpretation of “Taking No Action”

The law often seems like it’s written in a very different ‘language’ than how most of us speak in a normal day. That’s why having an experienced Charlotte trial attorney helps explain these differences. These explanations help not only you, as a client, to understand what is happening, but also courts to hear your side of the story. Consider the obstacle: in cases such as this, there’s no clear legislation or law, and limited court review. There were only the two prior court cases to look at for precedent. To be a Charlotte trial attorney in this sort of case required incredible work to explain what the legislature might’ve meant… “meant” by not doing anything. Basically, the Charlotte trial attorney succeeded in arguing five different reasons, or points of legislative analysis, to think about interpreting what laws already on the books should or could cover a stillborn child.

IV.  Live and Let Live

The Charlotte trial attorney had noted a 1969 North Carolina law to help fill in the meaning of being ‘alive.’ It was one of the few references to explaining North Carolina’s wrongful death statute may have meant: but it was pretty vague. The Statute’s enabling clause, or basis, was in defining a person as someone who “possesses human life.” In that 1969 law, the North Carolina assembly had said “whereas, human life is inherently valuable…”. Wrongful death was a way to value, and thus protect the broadest, not the narrowest, aspects of “life”. In this instance, it was not a stretch for the Charlotte trial attorney to argue that a viable fetus, “whatever it’s legal status might be,” is undeniably “alive and undeniably human.” This language used by the North Carolina Assembly, became the only available language, and was adopted by the North Carolina Supreme Court in this case. Once a defining argument is presented by a Charlotte trial attorney, and then accepted by the Supreme Court, the case is basically made: here, that some recognition is afforded a viable fetus.


We started our conversation here by talking about cases that “obviously” become famous. Part of the point to be made is that people involved in these cases —such as a qualified Charlotte trial attorney—don’t go into court to get to be famous. They are dealing with frequently tragic circumstances in which they are seeking justice or fairness. In the same way, people don’t seek famous lawyers for these cases: it’s more important to have a caring, impassioned and – and most importantly, experienced and committed—Charlotte trial attorney. If you, your loved ones or family members—have questions involving wrongful death or medical malpractice claims, please contact us.  You will speak with an expert in wrongful death, who can best answer your questions about how you or a loved one’s injuries may be addressed.  There is never a fee for this initial consultation.

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