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Can you pursue a wrongful death lawsuit for an unborn child?

Having a child is an exciting and joyous time in one’s life, or it should be. Expecting parents have a reasonable assumption that the pregnancy will go smoothly and a healthy baby will be waiting for them at the end of the journey.

Unfortunately, this is not always the case. Someone else’s negligence could cause an accident that abruptly ends a pregnancy. It’s a terrible tragedy for the family.

At this point, parents may be looking at their options for a wrongful death lawsuit. If, for instance, the mother and unborn child’s lives were lost in a car accident, a wrongful death lawsuit could be pursued for the mother. But what about for the unborn child?

New York Supreme Court decision

The New York Supreme Court ruled on a case that covered a very similar issue. In Endresz v. Friedberg, the plaintiff was seven months pregnant with twins when she was injured in an automobile accident by the defendant. Two days later, the plaintiff delivered the twins but they were stillborn.

The plaintiff pursued a wrongful death lawsuit for each child, and claimed damages for loss of anticipated care, comfort and support during the minority and majority of each infant and medical, hospital and funeral expenses for the children. The court at Special Term dismissed the two wrongful death claims.

In this case, the New York Supreme Court ended up ruling in the defendant’s favor. Therefore, the state does not allow a cause of action for the wrongful death of unborn children. Despite the fact that the plaintiff’s unborn children were older than 24 weeks, which is the point of viability when an infant could survive outside of the womb as defined by Roe v. Wade, state law says wrongful death claims cannot be brought about for unborn children as they would be for a living child.

Wrongful death during birth

This is not to say that all cases of negligence against an unborn child are hopeless. If a birth injury occurs due to improper handling of a baby during delivery or improper use of medical equipment or technique by a medical professional, and that injury causes an infant’s death, this would be a case in which a wrongful death lawsuit can be pursued. Birth injuries can also include injuries caused by improper prenatal care, such as prescribing a drug that may cause a defect to the baby.

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Brenna Boyce PLLC Attorney at Law
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Rochester, NY 14614

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