pregnant woman driver buckling her seatbeltSince the law was amended in 2012, the death of an unborn child, or a fetus, in a Virginia car accident allows the mother or her representative to file a wrongful death lawsuit against the negligent party for the loss. Prior to this, the only cause of action was on behalf of the mother who was hurt or killed in a Virginia car accident. 

What the Virginia Law Allows

Virginia law allows a natural mother (or her representative, if she is unable to bring a case) to file a wrongful death claim if her fetus is killed due to the wrongful act or negligence of another person in a Virginia car accident. The mother may be able to recover damages, not only for her own accident injuries but also for the death of her unborn child. The law appears to be written so as to allow the mother (or her representative) to file a wrongful death lawsuit regardless of how far along the pregnancy was at the time of the accident. In other words, there does not appear to be a requirement that the fetus be viable outside of the mother in order for a wrongful death claim to be filed.

The language of the law in the Code of Virginia is as follows:

  •  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.

The definition of fetal death in Virginia is as follows:

  • 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.

In a 2015 example case, after a woman and her unborn baby were both killed in a Suffolk, Virginia, crash, the father of the fetus filed a wrongful death claim as the representative of his wife's estate. The court awarded him $500,000 in wrongful death damages for the loss of the baby. His wife was seven months pregnant, so the fetus was likely viable. However, that was not a deciding factor in the case. The court also awarded the man $500,000 for the loss of his wife. 

Contact a Culpeper Car Accident Lawyer If You’ve Lost a Baby in a Crash

If you lost a pregnancy due to the negligence of another driver, then we encourage you to contact our compassionate and experienced Culpeper wrongful death attorneys today at 540-825-6046 or 800-741-1012 for a free consultation about your rights.

Richard A. Dulaney
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Richard has over 30 years of experience in personal injury law.
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