Can I file a wrongful death lawsuit on behalf of an unborn child?

For future parents, there is nothing more devastating than the loss of an unborn child. The situation is even more painful when the loss is caused by incidents occurring due to others’ mistakes or dangerous environments, such as car accidents, slip and falls, or faulty consumer products, which can all result in injury to the mother and the premature death of the unborn child.

The laws governing whether you can obtain compensation for the loss of an unborn child vary from state to state. It is worth noting that 34 states have implemented or made significant moves to institute a legal cause of action for the wrongful death of an unborn child, but Florida is not among these states. Florida is among the 10 states that do not consider an unborn child a person, regardless of where a woman is in her pregnancy. This means that if you were hurt while pregnant and your injury led to the loss of your unborn child, you cannot file a wrongful death lawsuit.

Most states recognize wrongful death lawsuits filed on behalf of an unborn child as valid, but only if the fetus was viable at the time of death. A fetus is considered viable when it can survive outside the uterus, and viability usually begins at 24 weeks of gestational age. Even though Florida does not recognize wrongful death lawsuits for unborn children, parents can still file a claim. The state’s law perceives the death of a fetus as a physical injury to the mother who was pregnant with the child, which is why the mother can seek damages for physical and emotional injuries caused by someone else’s negligence.

An unborn child’s father can also file a claim, but it is often much more difficult. This is because of Florida’s “impact rule,” which specifies that the person’s emotional injuries must stem from their own personal injuries. If an uninjured father is trying to recover non-economic damages, such as emotional distress from the loss of his unborn child, he most likely will not have a case since his emotional injuries are not a direct result of any physical injuries he suffered.

When it comes to mothers who lost a child, to be awarded damages, you will have to show evidence that the responsible party’s negligence caused the injury you suffered, including the termination of your pregnancy. Common scenarios include the following:

• negligence of a doctor or other medical professionals during labor led to stillbirth
• a doctor prescribed medication or the wrong dose that resulted in a miscarriage
• a driver caused a car crash where the mother suffered injuries and miscarried
• a negligent property owner caused the pregnant woman to slip and fall on their premises
• a mother suffered injuries from using a defective product
• the mother was the victim of a physical assault

How can The Law Offices of Sean M. Cleary help?

If you lost an unborn child due to an injury you suffered as a future mother, we encourage you to get in touch with The Law Offices of Sean M. Cleary, which will strive to determine whether you have a case if you reside in Florida. While these cases are very difficult and complex, our attorney, who has over 20 years of professional experience, is capable of thoroughly assessing your case to find out whether you can file a wrongful death lawsuit. So, do not hesitate to contact us.