Liability Before Viability: Virginia’s Fetal Death Statute

When an individual starts looking for a personal injury lawyer in Virginia, they are often doing so shortly after one of the worst days of their lives. This is doubly true when a parent is looking for legal advice after the death of a child. Virginia, like many states, has a cause of action for wrongful death.[1] This statutory cause of action allows for a personal representative of a deceased individual to bring suit on behalf of the deceased individual’s “statutory beneficiaries.” This statute did leave some questions, however, that were in need of interpretation. For instance, what if a fetus was wrongfully killed while in the womb. What if the fetus was injured in the womb, but only succumbed to its injuries after it was born? Was there liability in those instances?

These presented complicated and philosophically dense issues for any court to untangle. In the cases of Bulala v. Boyd and Kalafut v. Gruver, which were decided on the same day, the Virginia Supreme Court “drew the line between nonliability and liability for prenatal injury at the moment of live birth of the child.”[2] This, according to the Virginia Supreme Court, was when the fetus became a “person.”[3]

This line in the sand between “liability and nonliability,” however, has been swept away by the wind of legislative change. “[I]n 2012, the General Assembly amended the wrongful death statute to recognize that an action may be brought against a tortfeasor for the wrongful death of a child in utero.”[4]

It is well established, now, that Virginia recognizes separate claims for the death of a fetus. Specifically, Virginia, in amending the wrongful death act, established a fetal death statute specifically for this purpose. The fetal death statute reads:

Whenever a fetal death, as defined in § 32.1-249, is caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation, the natural mother of the fetus may bring an action pursuant to this section against such tortfeasor. Nothing in this section shall be construed to create a cause of action for a fetal death against the natural mother of the fetus.[5]

“Fetal death,” in turn, is defined as:

Death prior to the complete expulsion or extraction from its mother of a product of human conception, regardless of the duration of pregnancy; death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.[6]

This definition makes it abundantly clear that a cause of action for fetal death is viable regardless of the viability of the fetus itself. In other words, “fetal death” is statutorily defined as death before live birth. If such an event is caused by “the wrongful act, neglect, or default of any person,” it is actionable under the fetal death provision of Virginia’s wrongful death statute.[7]

The “natural mother of the fetus,” if she is competent to do so, is the individual empowered by the Code to bring such an action.[8] Damages for such a death, however, are not damages of the mother, per se, but are awarded “pursuant to [the wrongful death act].”[9] In other words, damages are awarded to the fetus’ statutory beneficiaries to compensate them for the types of damages contemplated in the act.[10]

While it is clear that, in Virginia, there is a claim for the wrongful death of a fetus, many insurance companies, especially those with a nationwide footprint, are not aware of this nuance of Virginia law. These companies, their adjusters, and even their attorneys often need education on this claim in order for them to appropriately evaluate the exposure of their insureds and clients when they are sued for fetal death.

If the unthinkable happens and an individual is put in the position the fetal death statute is meant to address, she would be wise to consult with an experienced personal injury attorney in Virginia who knows the path to follow in navigating a fetal death claim. It is a difficult and emotional process, and there is no reason that you should go it alone. Contact us today for assistance.

[1] See Va. Code § 8.01-50.
[2] See Bulala, 239 Va. 218, 229 (1990); Kalafut, 239 Va. 278, 283-84 (1990).
[3] Id.
[4] Simpson v. Roberts, 287 Va. 34, 45 (2014) (J. McClanahan, concurring).
[5] Va. Code § 8.01-50(B).
[6] Va. Code § 32.1-249.
[7] Va. Code § 8.01-50(B). The statute does, however, contain an explicit carveout that exempts the natural mother herself from being liable for a cause of action under the statute.
[8] Id. § 8.01-50(B)-(C). Subpart C allows individuals other than the natural mother of the child to bring this action should the mother die or become incapacitated.
[9] Id. § 8.01-50(C); -53.
[10] Id.; Categories of Damages in Virginia Personal Injury Cases