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Wrongful Death Actions for Unborn Children

Posted by: euser
August 03, 2007
Topic: Wrongful Death

Under Minn. Statute 573.02, a surviving spouse or next of kin of a deceased can bring and action for wrongful death when the death was caused by the wrongful act or omission of any person or corporation if the decedent might have maintained an action, had the decedent lived, for an injury caused by a wrongful act or omission.

In 1949, Minnesota became the first state to interpret its wrongful death statute to include a cause of action for the wrongful death of an unborn child. Since then, 34 other states have also recognized the ability to sue for wrongful death of a fetus. This cause of action is not recognized by ten states, including California, Florida, New York, and Texas, and the remaining five states remain undecided.

Under Minnesota case law, in addition to proving the traditional elements of wrongful death, a plaintiff who brings an action for the wrongful death of an unborn child must show that the child was viable and capable of separate and independent existence from the pregnant mother at the time of death. This is shown by introducing medical evidence or expert testimony.

Minnesota has a three to six year statute of limitations for wrongful death, meaning that a plaintiff must commence an action within thee years after the date of death, provided that the action is commenced within six years of the wrongful act or omission. Your case could be time-barred if a lawsuit is not commenced within this period. The attorneys are Milavetz, Gallop & Milavetz are experienced and knowledgeable in the area of wrongful death and can help to evaluate your potential claim today.