Can you make a Wrongful Death claim on behalf of a fetus in Maryland?

The simple answer is sometimes. the Court of Appeals affirmed that a cause of action lies for prenatal injuries to a viable child who is either stillborn or born alive and to a nonviable child who is born alive. The cause of action includes a wrongful death action as well as a survival action.

In a case where the mother is seven months pregnant at the time of the accident, the plaintiffs have two wrongful death claims and two survival action claims, one for the child and one for the mother.. In State v. Sherman, 234 Md. 179, 198 A.2d 71 (1964), the court created a cause of action on behalf of a viable fetus who was stillborn. In Sherman, the mother of a viable child suffered serious bodily injury as a result of an automobile accident. The child, who was a viable fetus in the ninth month of development, was delivered stillborn shortly after the accident. The Court of Appeals held that a cause of action could be maintained on behalf of the viable fetus to recover for its prenatal injuries. Later in Group Health Ass’n v. Blumenthal, 295 Md. 104, the Court of Appeals affirmed that a cause of action lies for prenatal injuries to a viable child who is either stillborn or born alive and to a nonviable child who is born alive. The cause of action includes a wrongful death action as well as a survival action. Smith v. Borello, 370 Md. 227

Sample Demand letter submitted to the insurance company for a wrongful death claim as well as a survivor claim based upon the death of a fetus.

         Fetus was a normally developed 32  week gestation female infant. Pre-natal records indicate routine care including ultrasound imaging had been maintained since the confirmation of pregnancy. Mother was seen by her obstetrician every 2-4 weeks as directed. Fetus had two siblings who were both full term deliveries without complication.  Evidenced by all available medical records, Mother was experiencing an uncomplicated pregnancy with an estimated due date of 07/28/08. (See attached medical records People’s Community Health).Upon admission to the Trauma Center, Fetus’s heart rate was noted to be in the 40’s, indicating severe distress. Fetus was delivered by emergency Caesarean section in the Trauma Resuscitation Area by Dr. and team on May 23, 2008. A 75% placental abruption was noted on the operative records. Fetus had Apgar scorings of 0 for appearance, 0 for pulse, 0 for activity, and 0 for grimace, 0 for activity, 0 for respiration. Resuscitation efforts were immediately undertaken by the neonatal team, including intubation, chest compressions and medication administration. Fetus s time of birth was 12:24 PM, with resuscitation efforts ceased at 12:34 PM. Her birth weight was 3.2 pounds, 17” in length. Externally she displayed no obvious signs of trauma.

 Post Mortem Findings

 Fetus was transported to the Medical Examiners in Baltimore. A necropsy was performed by Dr. Ana , MD; PhD. External review was consistent with the assessment at the Trauma Center. Internal examination revealed two contusions on the back of her head with hemorrhaging at the areas near the base of the head. Bloody cerebral spinal fluid was noted in the subdural space. A subarachnoid hematoma was also observed. The anatomical structures at the base of the brain including cranial nerves and blood vessels were intact.  Midbrain and all critical structures were intact and developed normally. Abdominal assessment revealed areas of bleeding in Fetus’s liver. Summary of the autopsy findings were traumatic brain injury. Cause of death for Fetus was stillborn resultant from placental abruption secondary to maternal trauma.

 Fetal pain perception has been validated by multiple studies to occur by 28 weeks gestation. Given that Fetus was a normally developed infant with all critical structures intact and developmentally appropriate, she would have possessed the sensory ability to perceive the pain incurred during the crushing abdominal and pelvic injuries sustained by her mother.

 Medical Expenses For The Estate Of Fetus         

University Of Maryland                                      $1070.57

Shock Trauma associates                                    $200.00

Total Medical Expenses for The                         $1270.57                     

Estate Of Fetus

Estate of Fetus Survival Claim

 Estate of Fetus Pain and Suffering

Claim emotional distress due to, conscious

pain and suffering of the deceased prior to her death                              $695,000.00

 Total Estate of Fetus Survival Claim                                                                          $696270.57

Wrongful Death Claim for Fetus

SolatiumDamages Claim For the Dependents

solatium damages  for wrongful death include pecuniary

 loss or benefit as well as“… damages for mental anguish,

emotional pain and suffering, loss of society, companionship,

comfort, protection, marital care, parental care, filial care,

attention, advice, counsel, training, guidance, or education,                                          $695,000.00

total demand for wrongful death claim as well as survival claim                                                                $1,391,270.50