COLUMN ONE : Protecting Fetuses at Mom’s Job : In California, a woman cannot sue her employer when her unborn child is injured at her workplace. The Legislature will examine a bill that would change that.

It is a pregnant woman’s worst nightmare.

Linda Bell Freytes, a clerk at a Macy’s department store in San Francisco, felt sharp abdominal pain after a morning coffee break. The nurse at Macy’s attributed the pain to indigestion; in fact, Freytes, seven months pregnant, had a ruptured uterus.

Ignoring Freytes’ pleas for medical help, the nurse waited 50 minutes to call for an ambulance. Freytes’ son was born with severe brain damage, resulting from the delay. He died at age 2.

Freytes sued Macy’s on behalf of her disabled son, but in a case with important implications for all pregnant women, she lost. A state Court of Appeal agreed that Macy’s was negligent. But the court said that since the sick baby was not a Macy’s employee, his survivors could collect nothing.

The ruling means a California employer has no liability for any fetal injury. Though it initially attracted little attention outside legal circles, the 1989 court decision is now at the center of a growing debate in California over the limits of an employer’s responsibilities.

It is a debate that is fast becoming one of the most important workplace issues of the 1990s, and one that comes at a time when society is trying to sort out its responsibility to the unborn.

The stakes cannot be measured in dollars alone. The emotional cost is incalculable. “Every day we had to face (the fact) that our son would die,” said Freytes, 34.

The Freytes case has prompted legislation in California--believed to be the first of its kind in the nation--that would permit suits to be brought against a parent’s employer on behalf of children with fetal injuries. The bill--which gets its first committee hearing on Tuesday--reaches far beyond the Freytes case to cover fetal injuries in the workplace caused by chemicals, radiation, even the AIDS virus.

California business vigorously opposes the bill. A fearful California Manufacturers Assn. put the proposal high on its “Dirty Dozen” list of anti-business bills and predicted that its passage would force factories to move elsewhere.

The proposed law makes employers especially nervous in the wake of a U.S. Supreme Court decision striking down an important defense against fetal-injury suits.

The case involved Johnson Controls, a Milwaukee car-battery manufacturer. In 1982, Johnson Controls adopted a “fetal-protection” policy that barred fertile women from factory jobs working with lead, a fetal poison. On March 20, the Supreme Court said companies could not block women from dangerous jobs in order to protect a fetus from possible injury.

The court said a company is guilty of sex discrimination if it bars a woman from any job solely because she is capable of bearing children. The court noted that lead also appears to pose a danger to male workers’ reproductive systems, but that Johnson Controls continued to hire fertile men in its battery plants.

Feminists hailed the ruling. Health and safety advocates said the decision might spur employers to “clean up the workplace.” But the U. S. Chamber of Commerce and other industry groups--blaming a lack of technology or prohibitive costs--said further “cleanup” wasn’t likely.

Several of the 15 corporations that had fetal-protection policies say their hiring practices are under review in light of the Supreme Court decision. Johnson Controls said it would hire women after they signed documents stating they understood the fetal risks associated with lead.

It was a chain reaction of misfortunes rather than a chemical hazard that thrust Linda Bell Freytes to the center of the “fetal protection” controversy: a ruptured uterus, a negligent company nurse, a long wait for help. Her baby was delivered at San Francisco General Hospital by emergency Cesarean section. By then, it was too late.

Freytes’ son developed hydrocephalus, a condition that causes spinal fluid to accumulate around the brain. By the time he died, his head had swelled to twice its normal size. The baby never walked; he smiled only in his sleep. He learned just two words: Mama and Boo-Boo--his nickname because, Freytes said sadly, “he was Mama’s biggest boo-boo.”

The precedent-setting Freytes case hinged on an interpretation of California’s workers’ compensation law. The 1st District Court of Appeal defined the baby’s injury as a workplace accident, because it was “derived” from an injury to his mother. Yet in what Freytes’ lawyers describe as a legal Catch-22, the court said in a 2-1 ruling that because the baby was not an employee, he could not collect workers’ compensation. Freytes received no compensation for her injury, either.

The two-judge majority said that in coming to its decision, it took into account the potentially large liability costs employers could face if they were held responsible for work-related fetal injuries. Nonetheless, the majority was uncomfortable with its decision and asked the state Legislature to review the law.

The dissenting judge went further, urging a change in the law. The majority decision leaves the baby’s parents “completely at sea,” wrote Appellate Judge Clinton W. White. “This may be the best of all possible worlds for the employer, but it is the worst of all worlds for the parents who . . . are left to fend for themselves.”

Assemblyman Richard E. Floyd (D-Carson) introduced the bill that would supplant the Freytes decision and allow suits against parents’ negligent employers for fetal injury. Floyd describes his bill as “sex neutral,” since it would allow suits to be brought on a child’s behalf for injuries that stem from reproductive damage to either the mother or the father.

“What we are looking at is an issue of fairness,” Floyd said. “If something happens to the child due to the negligence of an employer, something ought to be done. Now there is no remedy for a brain-damaged child.”

Under certain circumstances, California and 39 other states recognize the right to recover damages for prenatal injury outside the workplace based on the principle of negligence or wrongful death. A child may sue for fetal injuries suffered in a car accident. People may also sue drug manufacturers--such as the makers of the anti-miscarriage drug DES. Doctors face possible malpractice suits.

In California, only the employer is exempt from liability for fetal injury due to negligence.

The liability of employers for fetal injury in other states appears largely untested. In the Freytes decision, the Court of Appeal cited a Louisiana case in which a fetus was injured when its mother, a waitress, slipped on a restaurant floor. The Louisiana court allowed the mother to sue on behalf of the child.

The legislative debate in California comes as society is trying to grapple with its responsibility to the fetus, and, in doing so, is testing the limits of “fetal protection.”

In Washington, D.C., for example, a judge issued a ruling that allowed a hospital to perform a Cesarean section on a terminally ill woman against her wishes in order to save the life of her 25-week-old fetus. The baby died.

Also, law enforcement officials are increasingly seeking to hold pregnant drug and alcohol abusers accountable for endangering their fetuses.

Among the first such cases was the highly publicized 1987 arrest in San Diego of Pamela Rae Stewart on a charge that she contributed to her son’s death by ignoring a doctor’s advice to refrain from sex and drugs while pregnant. A Municipal Court judge dismissed the case against the woman, who was charged with failing to “support” her unborn child under a state law usually used to force delinquent fathers to pay child support.

In Florida last month, a state appeals court upheld the conviction of a woman for delivering cocaine to her baby through her umbilical cord. She had been charged under a law designed to prosecute dealers who sell drugs to children. The Florida conviction followed unsuccessful prosecutions of drug-addicted pregnant women in Michigan, Ohio, North Carolina, and Massachusetts.

The most fundamental “fetal protection” debate involves, of course, abortion--with no consensus in sight on society’s obligations to an unborn child.

Only recently has the discussion broadened to include the workplace, becoming “one of the most important topics” in bioethics, said Thomas Murray of Case Western Reserve University in Cleveland.

California’s “occupational hazard” hot line is a barometer of increased concerns. The state Department of Health Services said nearly one-third of the calls to the hot line deal with questions about pregnancy risks. Ten years ago, only 4% of the calls were related to pregnancy.

No one knows how many workers are exposed to fetal hazards. One estimate puts the figure as high as 20 million, or 17% of the work force. The state health department lists 117 suspected fetal hazards, among them glycol ether, a chemical used to make semiconductors, and carbon disulfide and toluene, both widely used industrial solvents.

The federal government, through the Occupational Safety and Health Administration, only requires employers to offer temporary job transfers to pregnant workers exposed to two well-researched fetal hazards: lead or ethylene oxide. A scattered number of employers voluntarily offer transfers or protective garb--such as lead-lined vests for laboratory technicians--to pregnant workers exposed to other suspected fetal poisons.

AT&T; says that not a single pregnant worker at its semiconductor factories has turned down a temporary transfer at full pay since it started the program in 1987. That was when a University of Massachusetts study found an association between high miscarriage rates and semiconductor factory jobs.

Health experts doubt many employers will take steps similar to AT&T;’s. The Supreme Court, in the Johnson Controls decision, suggested that employers would be free from liability for fetal damage if they followed OSHA guidelines. That may not, in itself, provide much protection for fetuses, since OSHA sets safety standards for adult workers, who are often less sensitive to hazards than developing fetuses.

“In the absence of government regulation, I don’t see the employers doing anything additional,” said James E. Lockey, an occupational health researcher at the University of Cincinnati.

Nonetheless, in California, supporters of the Floyd bill are optimistic that it would prod employers to consider fetal health.

“If an employer understands he is liable, there is much more incentive to make sure conditions are safer,” said Leonard M. Feldman, a spokesman for the California Teachers and School Employees Assn. Unions that represent nurses and hospital workers also support the bill.

California manufacturers and insurance companies managed to kill a similar legislative proposal last year. Industry is afraid that as a result of the Floyd bill, employers would be buried under an avalanche of lawsuits on behalf of children with prenatal injuries unrelated to their mothers’ jobs.

“If a mother takes a drink--has a cocktail--and the child is less than healthy, the employer will get sued,” a spokesman for the California Manufacturers Assn. said. “The employer is the deep pocket.”

Willie Washington, a lobbyist for the California Manufacturers Assn., said negligent employers should accept liability for fetal injuries--under certain circumstances.

“The question is, what is negligence? If a mother gets bumped, and a child is born with some small defect, the employer is going to get sued,” Washington said. “Soon we’ll be talking about the size of desks, the width of the aisles.”

Legal experts say employers actually have little to fear even if the bill becomes law. J. C. McElveen, a partner with Jones, Day, Reavis & Pogue in Washington, frequently represents employers in workplace liability suits. He said that with the exception of accidents--like the one involving Freytes--it is “almost impossible” to trace a fetal injury to the job.

Take the case of lead. Its dangers are well documented; it has been regarded as a reproductive hazard since the days of ancient Rome. The Centers for Disease Control in 1985 urged women who plan families to avoid jobs that involve high exposure to lead.

Yet one of the great ironies of the Johnson Controls case is that the company could not demonstrate to the courts that it needed a “fetal-protection” policy. Eight children were born to women who worked at Johnson Controls between 1977 and 1982. The company said that just one child appeared to have behavioral difficulties--an outcome health experts said was within normal limits.

In the case of Linda Bell Freytes, the injury was obvious. The hazard was unforeseen. As a data entry clerk in the credit department at Macy’s in San Francisco’s Union Square, she did not encounter deadly gases, chemicals or germs. It was, by all appearances, a safe job.

Bitter at Macy’s, Freytes quit after her baby was born. The child, Manuel Robert, died four months after his second birthday. By then, he could no longer hear, see or make a sound. He took nourishment through an intravenous tube.

Freytes said she sued Macy’s because she was angry--and to help pay medical bills that approached $500,000. California taxpayers, through Medi-Cal--the medical assistance plan for the poor--paid about half. Freytes’ sister paid for the baby’s funeral.

Seven years after the baby’s death, Freytes still grieves. “They took the most precious thing from me. My son, my firstborn,” she said tearfully. “My son, a gift from God.”

TROUBLING TO WORKERS The state Department of Health Services’ occupational hazard hot line received nearly 600 pregnancy-related calls in 1986, the last year for which figures are available. There was significant concern about organic solvents and lead--substances that health officials believe pregnant women should avoid . Item: Number of Inquiries Unspecified solvents: 45 Pesticides: 41 Acrylate: 39 Acids: 34 Paints: 33 Acetone: 30 Ammonia: 24 Lead*: 23 Video display terminals: 23 Xylene**: 23 Isopropanol: 21 Fluorocarbons: 19 Trichloroethane**: 19 Toluene**: 17 Formaldehyde: 14 Methyl alcohol**: 14 Methylene chloride**: 14 Nitrous oxide***: 14 Petroleum distillates: 14 Solder fumes: 13 Glycol ethers***: 12 Methyl ethyl ketone**: 12 Photography chemicals: 12 Metallic mercury***: 11 Permanent-wave products: 11 Hair dyes: 10 Callers may have inquired about more than one agent. * Known human reproductive toxicant. ** Possible human reproductive toxicant *** Probable human reproductive toxicant SOURCE: Western Journal of Medicine