Most states allow a wrongful death civil action for damages for the loss of an unborn fetus but with the proviso that the fetus must be viable. Although there may be several tests for what is a viable fetus, the issue is actually irrelevant in West Virginia where the courts have ruled that a wrongful death action for loss of a fetus is recognized from conception until birth. West Virginia is in the minority of states that do not require proof of viability of the fetus in order to collect in a wrongful death action.

Where there is a wrongful death action regarding a fetus in West Virginia, the damages awarded will primarily be based on the emotional pain and suffering of the mother and father and any economic losses incurred. As a practical matter, there would be no way to compute lost earnings or other economic damages for a fetus. As a consequence, the potential for recovery is generally smaller than in a wrongful death to an adult with a work history to calculate out.

In Illinois, a product liability and wrongful death complaint were filed by a woman against the parent company of TJ Maxx and against a chair manufacturer, after the woman who was 7.5 months pregnant suffered injuries when a chair she was sitting in collapsed. She was trying out the chair in contemplation of buying it. The complaint alleges that she lost her baby as a result of the injuries suffered when the chair collapsed.

It appeared that tests showed a vital fetus after the accident but within a short time the fetus died. The wrongful death lawsuit says that the trauma from the defective product caused the fetus to be separated from the uterus, depriving her of oxygen and killing her. That is a common occurrence in fetal deaths. There is a product liability claim included in the suit regarding the chair, which is alleged to be unsafe and dangerous. Strict liability is claimed against the defendants.

Source: Southtown Star, Suit: Woman lost fetus after mishap at store, No author, Jan. 24, 2014