One struggle in wrongful death cases is deciding if a human has been killed. A pet can’t be claimed for, and neither can inanimate objects. What about unborn children, though? At what point do fetal deaths begin to count as human deaths for a wrongful death lawsuit?
It’s not to say that the death of a fetus can’t be claimed for in other ways, but generally speaking, for a wrongful death lawsuit to be filed in medical malpractice cases, whether or not a fetus will be considered to be a living person is dependent very much on the case.
For instance, there was recently a case where a doctor in Connecticut accidentally ruptured a fetal membrane when taking out a birth control device. The fetus was born at 22 weeks. The baby did not survive, but he did live for two hours outside the womb.
The judge in this case let it go forward because states disagree on whether or not a wrongful death case is allowed for fetuses that can’t live without support outside the body. Normally, medical malpractice can still be claimed for the negligence of a doctor, but that isn’t the same as filing a wrongful death claim. Most specifically in that case, it may be that the parents intended on carrying out the pregnancy that played the largest role in the wrongful death claim.
Medical malpractice and wrongful death claims for unborn children are still debatable in the country, so attorneys must stand up for their clients and make sure all claims are fully investigated. If a wrongful death case can’t be launched, there could be other types of cases more suitable for claiming compensation.
Source: Hartford Courant, “Connecticut Fetal Death Lawsuit Settled,” Jan. 26, 2016