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If a fetus dies in a crash is a wrongful death claim possible?

The status of the unborn continues to be a topic of ongoing debate state by state and across the nation. This can raise some complicated questions in some motor vehicle accidents. For example, if a fetus is killed as the result of a car wreck, can that warrant a claim for compensation for wrongful death?

In some states, an infant's death would be considered wrongful only if he or she was born alive and died as a result of the incident. In such cases, fetal deaths would not be seen as justifying a wrongful death claim.

But in Texas the law is very clear on this subject. It states that a wrongful death claim can be brought if another's negligence is responsible for an injury that causes an individual's death. And the law specifies that an unborn child, at any point of gestation, is considered an individual. The definition of a death includes the failure of an unborn child to be born alive.

Another question that can arise in a case of the loss of a fetus or child is how to assess the financial loss. If a parent is killed, a child may rightfully seek recovery for the loss of the parent's income. But in addition to that, the loss of that parent's love and guidance over time can be gauged and accountability rendered.

The financial loss attributable to the loss of a child, however, is much harder to determine. Factors typically examined include:

  • Vital statistics such as age, gender, life expectancy and state of health
  • Potential lifetime earnings
  • The relationship of the person making the claim
  • And the vital health statistics of those making the claim

Obviously, some of those issues can become difficult to assess the younger the child victim happens to be. An attorney with experience in personal injury claims is typically in the best position to estimate what damages might be sought.

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