No, California does not permit wrongful death recovery for the death of an unborn child– even if the fetus is considered viable or “brought to term.” A wrongful death lawsuit allows the pursuit of compensation after “the taking of an individual life, resulting from the willful or negligent act of another person or persons.” Herein lies the problem: in a civil sense, California law does not recognize the “personhood” of an unborn baby.
Consulting with a wrongful death lawyer in Los Angeles can bring some measure of comfort, as it allows the full exploration of your legal rights as it pertains to your particular case. Even if you cannot bring a wrongful death suit, you may still be entitled to pursue some other type of compensation after your tragic accident.
California allows the pursuit of damages for negligent infliction of emotional distress. Your legal team will need to demonstrate that the defendant’s actions caused severe emotional harm. Following the death of an infant, you may become extremely anxious, angry, or depressed. It may be difficult to sleep, eat, focus on your work, or care for yourself.
The long-term physical effects of stress have been well-documented. Seeking medical attention from a mental health care professional as soon as possible can help validate your claim. The loss of a fetus can certainly increase the amount of money you receive for “emotional distress,” as well as “pain and suffering,” on top of claims for physical injuries, lost wages, and property damage.
A wrongful death lawsuit is possible if a baby is born alive, even if only for a short period, and succumbs to their injuries. Motor vehicle crashes are the leading cause of fetal death related to maternal trauma. Surviving babies suffer a host of physical and mental problems, including severe neurological deficits. These medical costs, including time off from work to care for the infant, an estimated measure of pain and suffering, as well as funeral and burial expenses, can all be collected in a wrongful death lawsuit for a child who was born live and passed away shortly thereafter.
Interestingly enough, California criminal law does permit murder charges when an unborn baby dies as a result of another person’s gross negligence, wanton recklessness, or intentional misconduct. Your legal team must be able to prove malicious intent or such unreasonableness that it offends the sensibilities of a rational person. We often see murder charges pursued when the other motorist was driving while intoxicated, well beyond the legal limit, or engaged in some high-speed pursuit and criminal activities.
We could see this area of the law change in the coming years, as California is one of just 10 states that does not recognize the “viability” of fetuses in civil law. Most states allow wrongful death claims to move forward if the pregnancy was far enough along that the child could have survived outside the womb– if born prematurely. No matter which state you’re in, pursuing a wrongful death claim for a fetus can be an uphill battle. Depending on the state, doctor testimony may be required to substantiate the health of the fetus before the accident and make the case that the baby would have most likely survived, had the accident not occurred.
Furthermore, you may be required to prove that the other motorist knew of the pregnancy and acted with purposeful intent. Other states only compensate the victims “to make them whole” after the loss; since a fetus does not contribute anything financially to the household, the amount that may be recovered can be minuscule.
Losing an unborn child can be a traumatizing experience with emotional scars that last a lifetime. The compassionate Los Angeles personal injury attorneys at Salamati Law will consider every possible angle to determine if you are legally entitled to any compensation for your loss, which occurred through little to no fault of your own. Contact us for a free case review, legal services at no upfront cost, and contingency-based representation.