A two-vehicle collision in southwest Denver has resulted in a precedent-setting lawsuit involving a mother’s attempt to collect damages in the death of her baby delivered by C-section after the accident.
At the time that Marco Gonzales was delivered, he was 22 weeks old. He lived one hour and six minutes before dying.
A lawyer for Veronica Mascarenas, the woman being sued by the child’s mother, claims that Marco wasn’t a “person” as defined by Colorado law and no damages can be recovered.
But lawyer Chad Hemmat, representing Shantal Gonzales, Marco’s mother, says that Marco was a person and that Gonzales can recover damages under Colorado’s wrongful-death statute.
Hemmat said Gonzales, 21, suffered significant depression “as a result of losing a little life she carried for 22 weeks.”
Gonzales was a passenger in a car being driven by Mascarenas when it was hit by a pickup truck.
The case is expected to go to trial this week in Denver District Court.
The accident occurred June 19, 2005, at the intersection of South Federal Boulevard and West Kentucky Avenue. The pickup driver, who witnesses said was driving at a high rate of speed, left the scene of the accident and has never been located.
Gonzales blames Mascarenas for turning in front of the truck and causing the collision. Mascarenas blames the pickup driver.
Mascarenas’ lawyer, Anthony Viorst, claims that Gonzales can’t be awarded damages because the Colorado wrongful- death statute says lawsuits can only be filed when a “person dies.” Viorst alleges that Marco was not a person but a fetus – and a non-viable fetus.
Under Roe vs. Wade, a viable fetus is one that has achieved sufficient fetal development that enables it to live indefinitely outside the womb by natural or artificial life-support systems.
“The baby was not viable, at least in the sense of being able to have any meaningful life outside the womb,” Viorst said. “If you look at all the medical records, they say this baby had to be delivered because of the medical condition of the mother but would not survive.”
Hemmat disagrees, arguing that Marco was born alive and lived for more than an hour without life support.
Hemmat says that although Colorado has no previous legal decisions on the topic, several states have held that when a fetus is born alive, as in this case, the question of viability doesn’t have to be addressed.
“In these jurisdictions, a wrongful-death claim can be brought by a parent when a baby is born alive, regardless of the duration of the baby’s life,” Hemmat said.
Hemmat said the doctor who didn’t put the baby on life support will testify that given the legal definition of viable, doctors could have put Marco on life support and maintained organ function. But, he said, doctors determined that the baby’s lungs weren’t developed enough to sustain quality life. Marco could have been put on life support, but he would have had to remain on life support for the balance of his life, the lawyer said.
“What kind of life would that have been for this little one?” Hemmat asked.
During the trial, expected to take up to four days, the jury will be asked to assess the percentage of damages that should be attributed to Mascarenas and the unknown pickup driver. If the jury finds Mascarenas was at fault, the amount of the award against her will be reduced by the percentage of fault assigned to the hit-and-run pickup driver.
“It is an interesting legal issue,” Viorst said.
Viorst said his client has offered to settle the case for $50,000; Hemmat wants $100,000 to settle.
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
