More than 98,000 people are killed each year as a result of medical errors. The rights of the deceased are protected in court through what is called a survival action, which allows the relatives to file a claim in place of the deceased for conscious pain and suffering, damage to person/property, and medical expenses. Survival actions are commonplace where a doctor’s negligence caused someone’s death. In order to succeed on a medical malpractice claim, it must be shown that the medical personnel was negligent in causing the harm in each instance.
The law was unsettled, however, on whether parents could bring a survival action for an unborn/stillborn child. It is often a grey area as to the issue of whether a still born child has any rights under a survival action.
A 2010 Louisiana Court of Appeals case addressed this very issue:
Carli Long, 7 months pregnant, was injured in a car accident. She was pinned in her vehicle and was ultimately diagnosed with a hip fracture. She was admitted to the ER shortly after the accident where the attending nurse charted a fetal heart rate of 120. Two hours later, nurses were unable to detect a fetal heart rate. Long underwent a cesarean section to deliver the stillborn child. She subsequently filed a survival action on behalf of her unborn child. The main issue in this case hinges upon the courts view of survival rights to a stillborn child.
Louisiana Civil Code article 26 provides that
An unborn child shall be considered as a natural person for whatever relates to its interests for the moments of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death (does not include survival actions).
In 1997, a Louisiana court, addressing the issue of an unborn child’s right, stated
A cause of action can be pursued only if the fetus is subsequently born alive. A survival action for damages suffered by a stillborn fetus clearly does not fit within this first exception because the stillborn fetus is not born alive. Because it is born dead, it is as though it had never existed and the cause of action it acquired became conditional on its live birth. (Wartelle v. Women’s and Children’s Hospital, Inc.)
A survival action is based on the victim’s right to recovery being transferred upon the victim’s death to the beneficiary. Therefore, a baby’s rights transfer to the parents upon the child’s death, if and only if the child was born alive. Under Louisiana law, a stillborn fetus cannot transfer any rights because it has acquired none. Rights are only acquired in a live birth.
Although Long was unable to recover for her survival action under Louisiana law because she delivered a stillborn child, it is important to pursue all possible options. Long may still have had a valid claim for negligence or wrongful death against her nurse or doctor. In any complex issue it is important to consult an experienced attorney to consider the best strategy.