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Wrongful Death of Unborn Child: Damages for Death of Unborn Fetus is Allowed in Both Texas and New Mexico

Last year, we were hired by a woman who was rear-ended by an 18-wheeler on Interstate 10 in El Paso, Texas. At the time of the collision, the mother was pregnant in her second trimester. The force of the collision caused the seatbelt of the expectant mother to crush her stomach. Our client was taken to the hospital; however, the medical personnel could not detect the baby’s heartbeat. Tests confirmed that the mother lost her unborn child. Not only did the mother suffer significant personal injuries, but both the expectant mother and the father were severely damaged by the loss of their unborn child. While no amount of money can make up for the loss of an unborn child, we were tasked with determining whether Texas law allows for recovery of wrongful death damages for the death of the unborn child.

We looked to the Texas wrongful death laws to find the answer. The Texas wrongful death laws are found in Chapter 71 of the Texas Civil Practice and Remedies Code. The wrongful death statute says that if another person wrongfully causes the death of an individual, then certain family members can sue for their loss in losing the family member. Specific family members that can make a claim for wrongful death are the surviving spouse, the children and the parents of the individual wrongfully killed. The legal question then becomes whether an unborn child is an “individual” according to the wrongful death statute so that the expectant parents can recover for that loss.

Texas Civil Practice and Remedies Code Section 71.001(4) provides, “’Individual’ includes an unborn child at every stage of gestation from fertilization until birth.” Section 71.003 further states that the wrongful death right to recover applies as if the individual injured had lived or had been born alive. This means that the parents of an unborn child who does not survive the trauma of an accident may recover for their loss of the child in Texas. Texas further goes onto allow this right of recovery in Texas courts even if the injury occurred outside of the state. While our specific case dealt with an automobile accident, the law extends to most all types of personal injury cases, including, for example, claims for wrongful death of an unborn child as a result of a dangerous and defective product. In Texas, the statute of limitations for the wrongful death of an unborn child is two years from the date of fetal demise.

There is certain exceptions to the Texas law that should be considered. The law does not allow a claim that is brought against the mother of the unborn child. Hence, the expectant father of an unborn child cannot bring a claim against the child’s mother, no matter who is at fault in the accident. In our case, there was no issue as to the mother’s innocence. But, if the mother would have been at fault for the accident, the father would be prohibited by law from bringing a claim against the mother.

Also, the wrongful death statute very generally does not allow the mother or father of an unborn child to bring a claim against a doctor or healthcare provider for the wrongful death of the unborn child in a medical malpractice claim. As long as the doctor or healthcare provider is performing a lawful medical or healthcare practice or procedure, then the parents cannot bring a wrongful death claim even if the doctor or healthcare provider negligently causes the unborn child’s death.

New Mexico has similarities and differences with Texas law. The groundbreaking case that recognized a right of recovery for the wrongful death of an unborn child was Salazar v. St. Vincent Hospital, 95 N.M. 150 (Ct. App. 1980). In the Salazar case, the New Mexico Court of Appeals held that there was an independent right of recovery for wrongful death of a “viable fetus.” In 1995, the Supreme Court of New Mexico in Miller v. Kirk, 120 N.M. 654 (1995), reaffirmed the right of recovery for wrongful death of a viable fetus; however, the New Mexico Supreme Court refused to allow a recovery for the death of a nonviable fetus. Viability is defined as the stage of fetal development when the life of an unborn child may be continued indefinitely outside of the womb by natural or artificial life support. Hence, in New Mexico, as long is the unborn child would be able to survive outside of the mother’s womb, then the right to maintain an action for wrongful death is allowed. Contrast this to Texas, where the right of action applies from the point of fertilization. In New Mexico, the statute of limitations for the wrongful death of an unborn child is three years from the date of fetal demise.

In negotiations with the insurance company for the at fault driver, we were able to cite the Texas law to increase the value of the claim for the mother for her injuries and for the loss of her child. We were also able to help the expectant father recover for his loss. While the result we were able to obtain was by no means sufficient to make up for their loss, the parents were able to hold the driver accountable to the maximum extent allowable under the law.

S. Clark Harmonson is the founder and owner of Harmonson Law Firm located in El Paso, Texas. Harmonson Law Firm is a personal injury law firm who represent seriously injured individuals and family members of those killed as a result of wrongful death throughout Texas, New Mexico and Arizona. If you have a question about this article or for any other reason, feel free to give Clark a call at (915) 584-8777 or fill out our contact form.

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