IN KANSAS, WHEN CAN A WRONGFUL DEATH CLAIM BE BROUGHT FOR THE DEATH OF AN UNBORN CHILD?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Humes v. Clinton, 246 Kan. 590, 792 P.2d 1023 (1990).
This case addresses the following issue:
When can a wrongful death claim be brought for the death of an unborn child?
In this case, the court was asked to determine if a wrongful death claim can be brought on behalf of an unborn child that is killed by the negligence of another. Id. at 591. After reviewing decisions of other states and carefully parsing the language of the Kansas Wrongful Death Statute, the court concluded that such a claim could be brought, but only if the fetus has reached a point of viability. Id. at 596. Following this decision, the Kansas Legislature amended the statute to allow such claims to be brought on behalf of any unborn child, whether viable outside of the womb or not. K.S.A. § 60-1901.
In this case, Plaintiff had a form of contraception inserted by Defendant. Id. at 591-92. The device was to be replaced every year, but Defendant incorrectly told Plaintiff the device would be effective for up to 15 months. Id. at 592. After about 14 months, Plaintiff became pregnant. Id. Because of the contraceptive device, Plaintiff began experiencing several complications with her pregnancy. Id. The device could not be safely removed at this point, and the medical risks to Plaintiff were very great. Id. At a point in time when the fetus was still nonviable and could not have survived outside of the womb, an abortion of the child had to be performed. Id. at 593. Plaintiff and her husband filed suit against Defendant, alleging multiple claims, including wrongful death of the unborn child. Id.
The court began by noting that, absent statutory authority, the law generally does not recognize any claim for “prenatal personal injuries.” Id. Approximately 60 years ago, states had begun passing laws that allowed for such injuries to be redressed so long as the child ultimately survived. Id. at 594. A few decades later, states expanded recovery to viable fetuses that do not survive. Id. In fact, Kansas cases had allowed a wrongful death action to be brought when the deceased is “a viable fetus that is stillborn as a result of the prenatal injuries.” Id.
This case, however, posed a different question: what if the fetus was too young to have survived outside of the womb? Id. at 595. Again, looking to other states, the court noted that “several courts have expressly ruled that no action can be maintained for the stillbirth of an injured nonviable fetus.” Id. The lack of “independent life” is what most of these cases honed in on when arriving at this result. Id. Because “a nonviable fetus which dies before birth has never become an independent living person,” the court could not find that such a fetus fit within the definition of a “person” in the wrongful death statute. Id. at 596. Thus, the claim for wrongful death could not be maintained in this action. Id.
The court ended by noting that “the public policy decision to extend liability under the wrongful death act is properly left to the legislature.” Id. The Kansas Legislature heeded this call, and amended the wrongful death statute to cover any fetus, from fertilization to birth. Thus, under the current law, the claim in this case could have been brought.