Miscarriage After an Accident: Legal Action
Long Beach Personal Injury Lawyer
Losing a fetus due to a miscarriage is an emotionally devastating experience. When the miscarriage was caused by the negligence of another party, the devastation is compounded. If the miscarriage was caused by a car accident or a slip and fall, you may be entitled to compensation for your loss.
California Law: No Wrongful Death Recovery for Death of Unborn Fetus
California law does not allow for a wrongful death claim to be filed after the death of an unborn fetus. Instead, the mother can file a claim for negligent infliction of emotional distress.
The claim is based upon the emotional losses experienced by the mother. The legal action is addressed through proving that, more likely than not, the miscarriage would not have occurred had the accident not taken place.
As there is no right in California to sue for the wrongful death of a fetus, the claim will be related to the extreme emotional distress suffered by the mother due to the loss of her child. The suffering of a mother who miscarried a fetus can be tremendous.
“Causation Challenge:” Connecting the Miscarriage to the Accident
If you suffer a miscarriage after a car accident or a trip and fall accident and believe that the miscarriage was due to the accident, you should expect that the insurance company will vigorously fight your claim, particularly if the miscarriage occurred several weeks after the accident, or if the miscarriage happens early in the pregnancy.
Some of the points that the insurance company could raise include:
- Prior history of miscarriage
- Maternal age (as older women are at higher risk of miscarriage)
- Fetal age (If it was early in the pregnancy, a miscarriage may have occurred even without the accident)
- If the accident was so minor that it was unlikely to be the cause
- If it was an unplanned pregnancy and the victim was unaware that she was pregnant until the miscarriage
- If the victim was unmarried
- If the victim has had several abortions and would have likely terminated the pregnancy
- If the victim has other children and the loss was not significant.
Your lawyer will need a medical expert who can testify regarding "causation" – that the miscarriage was caused by the impact or fall.
The burden is on the injury victim to prove that it is more likely than not the accident caused the miscarriage, and that had the accident not taken place, it is likely that the baby would have been born alive. The further along the pregnancy was, the easier it will be to connect the miscarriage to the accident.
It can be difficult to find an OBGYN who is willing to get involved and provide causation testimony. You need a lawyer with experience handling miscarriage after accident cases and knows medical experts who can provide that critical causation testimony.
At McGee, Lerer & Associates, we take these cases personally, and you can be confident that we are professional, determined and zealous advocates for your rights.
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