As you may remember, about a year ago, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb. See here. Then, last November, a new lawsuit was filed in Nebraska asking the court to recognize a claim for the wrongful death of a fetus for the first time in that state. See here.
Now comes news that a case in Colorado is raising the same question. As so often happens in cases that raise this question, the wrongful death statute refers to the death of a person and the defendant is arguing that a fetus should not be considered to be a person. What's a bit unusual about the argument in that particular case is that the defendant is a Catholic hospital. The case was dismissed initially when the court interpreted the word "person" to include only someone who had been born, but the plaintiffs recently filed an appeal before the Colorado Supreme Court. The Denver WestWord News has more on the story here.
The facts, as you would expect, are tragic. In a nutshell, a pregnant woman went to the hospital with shortness of breath where eventually she died. The hospital staff did not conduct an emergency C-section believing the twins the woman was carrying had died too. Having consulted experts, the husband has now filed a claim alleging malpractice.
Evidently, the case raises an important issue that has been addressed by other jurisdictions. Currently, the majority view seems to be that a cause of action is allowed if the plaintiff can show the fetus was viable at the time of the incident, while a few jurisdictions recognize the cause of action regardless of the state of gestation and a few others which do not recognize the cause of action unless the child survived independently of the mother before dying.
NOTE to my current students: this is a topic we will cover in detail later in the semester.