A wrongful death claim arises if a person dies due to the negligent or intentional act of another person. However, wrongful death claims for fetuses that die in the womb (stillbirth) are not always straightforward. Below are a few things you might need to know in order to succeed with a wrongful death claim after a stillbirth.
Do State Laws Apply?
Find out what your state laws say about wrongful death claims for unborn babies. Some states don't allow such claims while other states allow them. The state to be concerned with is the state in which you lost your unborn child.
Was the Fetus "Quick?"
Some states allow you to proceed with a wrongful death claim for a stillbirth if you can prove that the fetus was 'quick.' A quick infant can move and kick to the extent that the mother can feel it. In this context, the 'quickness' test determines whether the unborn child was healthy and developed.
Your medical records and the testimony of a medical expert can help you prove that your unborn child was quick. Your prenatal or antenatal care records will be particularly of big help.
Was the Fetus Viable?
Some states use the viability test instead of the quickness test. Such states allow you to proceed with a wrongful death claim if you can prove that your fetus was viable. A viable fetus is one who can survive outside the womb — with or without medical care. Being viable means the fetus had a reasonable chance at survival outside the womb.
Two things determine the viability of a fetus — age and health. Most medical experts maintain that fetuses are only viable around the 24th week of pregnancy. Thus, you won't be able to institute a wrongful death claim for stillbirth in the 18th week of pregnancy.
As for health, the court will consider whether the fetus was healthy. If the fetus wasn't healthy, then the court will consider whether the medical problems would have allowed the baby to survive outside the womb. Thus, if you lost the fetus after 30 weeks of pregnancy, you won't succeed with a wrongful death claim if the unborn child was too sick to survive on their own.
As you can see, wrongful death claims can be pretty complicated if it involves an unborn child. Don't try to navigate such a case on your own. Instead, seek experienced wrongful death attorney services to advise you on how to proceed.