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           Courts nationwide have long considered the issues surrounding the recovery for wrongful injury caused to a fetus.  These questions are particularly relevant in the medical malpractice context.  It is not unusual for a medical malpractice action to involve a claim for the wrongful death of a fetus.  Prenatal injury, of course, can occur under many different medical contexts, but perhaps more commonly in the obstetric and gynecology context. 

            This year The Massachusetts Supreme Judicial Court, in Thibert v. Milka, considered whether a nonviable fetus at the time of an injury has a cause of action for wrongful death.  Although this case was not a medical malpractice case, the ruling will have an impact in the medical malpractice arena.  The Court held that there was no cause of action under the state's wrongful death statute for the death of a fetus that was not viable at the time of injury and was not born alive.

            In this case, the issue arose out of an automobile accident.  In March of 1989, a backhoe slid of a truck operated by the defendant, and collided with an automobile.  The plaintiff was a passenger in the car and suffered injuries.  His wife, the driver of the car, and their unborn baby, however, were killed. 

             The baby had a gestational age of sixteen weeks.  In Massachusetts, a baby is viable when "it is so far formed and developed that if then born it would be capable of living."  There was no issue in this case that the baby was not viable under this definition.

            The plaintiff sued the defendant under the Massachusetts wrongful death statute, which is similar in language to other states' comparable statutes.  The statute provides in part that "a person who by his negligence causes the death of a person . . . under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted . . . shall be liable for damages. . ." 

            Earlier Massachusetts cases have addressed recovery for wrongful death regarding similar issues of prenatal injury.  For instance, one case held that recovery was allowed where a fetus was viable at the time of injury and born alive.  Another case later permitted recovery for the injury to a fetus that was not viable at the time of injury, but was born alive.  And yet another case found that there could be recovery for a stillborn if the fetus was viable at the time of injury.  In Thibert v. Milka, the Massachusetts high court was now being asked to extend this line of cases to permit recovery for the wrongful death of a stillborn that was not viable at the time of injury. 

            The court declined to do so reasoning that the purpose of the wrongful death statute is to compensate a decedent's survivors for the loss of the decedent's life.  The statute allows for recovery if the decedent had, or was capable of having independent life.  Thus, recovery was permitted for the death of a fetus that was viable at the time of the injury because it could have survived apart from its mother.  But where a nonviable fetus is stillborn, it could not have had an independent existence.  It followed, therefore, that a stillborn child was not entitled to an independent cause of action.    

            The court recognized that the majority of other state courts that have addressed this issue have reached the same conclusion.   Although this case is limited in scope, it, and other cases like it, will still have an important impact in the medical malpractice context.  It is clear that while the Massachusetts courts have recognized that under certain situations recovery for prenatal injury is appropriate, it has also now recognized that there are limitations to such liability. 

Wrongful Death: Viable Fetus

by Attorney Frank E. Reardon

April 1995