A bill (CS/SB 1284) winding its way through the Florida Senate, if enacted, would expand Florida’s Wrongful Death Act to allow the parents of an unborn child to recover noneconomic damages for mental pain and suffering from a person who is responsible for the death of the unborn child. The mother cannot be sued in a wrongful death action for the death of her unborn child. Also, a health care provider providing lawful medical care provided in compliance with the applicable standard of care is not liable for wrongful death of the unborn child.
The bill expands Florida’s Wrongful Death Act to allow the parents of an unborn child to recover noneconomic damages through the Act for mental pain and suffering from a person who is responsible for the death of their unborn child. The term “unborn child” means “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.” Thus, the bill authorizes a wrongful death action for an unborn child who is lost at any stage of a pregnancy.
By authorizing a wrongful death action, the parents of the unborn child will not be limited to the damages available under the common law cause of action for negligent stillbirth. The parents, instead, are authorized to recover the full measure of the economic and noneconomic damages available under the Wrongful Death Act. These damages include damages for the parents’ mental pain and suffering related to the death and their future mental pain and suffering based on the life expectancy of the parents and the child.
Although the bill authorizes the parents of an unborn child to recover damages for the loss of an unborn child, the bill does not change the requirements of the Wrongful Death Act that the action be brought by the court-appointed personal representative.
Florida Wrongful Death Action For Death Of An Unborn Child
In 1978, the Florida Supreme Court held that an unborn fetus is not a “person” for purposes of Florida’s Wrongful Death Act (“Act”). Thus, when a person causes the death of an unborn child, the child’s parents cannot recover civil damages under the Act for the death. In 1997, the Florida Supreme Court reiterated that “there is no cause of action under Florida’s Wrongful Death Act for the death of a stillborn fetus.” However, in that same case, the Court recognized a common law action for “negligent stillbirth.” The Court emphasized that the damages recoverable in such action are limited to mental pain and anguish and medical expenses incurred incident to the pregnancy, and that such legal action is different from an action under the Wrongful Death Act, as follows: “A suit for negligent stillbirth is a direct common law action by the parents which is different in kind from a wrongful death action. The former is directed toward the death of a fetus while the latter is applicable to the death of a living person. As contrasted to the damages recoverable by parents under the wrongful death statute, the damages recoverable in an action for negligent stillbirth would be limited to mental pain and anguish and medical expenses incurred incident to the pregnancy.”
Therefore, Florida allows a limited recovery of damages for negligent stillbirth, but it does not recognize a cause of action for wrongful death based on the death of an unborn child.
Florida remains one of six states, including California and New York, that currently do not recognize a cause of action for the wrongful death of an unborn child. Forty-three states currently have some form of cause of action for the wrongful death of an unborn child. These statutes condition recovery based on the viability of the child in question.
Fifteen states afford a cause of action for the wrongful death of an unborn child at any stage of development. Several of these states, however, provide an exception so that the mother cannot be sued for the wrongful death of her unborn child. Three states, including Connecticut, Georgia, and Mississippi, allow a wrongful death action to be brought on behalf of an unborn child if the quickening standard is met, which requires fetal movement to have been detected prior to death.
Twenty-five states allow a cause of action for the wrongful death of an unborn child under a viability standard, which examines whether an unborn child can exist independently outside of the mother’s womb. Of these 25 states, one state, Indiana, expressly prohibits a wrongful death action if the death of an unborn child is the result of a lawful abortion.
One state, Wyoming, remains undecided as to whether a cause of action for wrongful death exists as to an unborn child.
If you or a loved one have suffered serious harm (or worse) as a result of medical negligence in Florida or in another U.S. state, you should promptly find a Florida medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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