Is a Miscarriage a Recoverable Damage in a California Personal Injury Case?

In California, the loss of a fetus due to another party’s negligence presents complex legal challenges. Notably, California law does not recognize a separate wrongful death cause of action for an unborn fetus. However, while a wrongful death claim may not be available, the emotional distress and pain and suffering resulting from a miscarriage may be recoverable damages in a personal injury lawsuit.

No Wrongful Death Claim for an Unborn Fetus in California

California law defines a "person" under its wrongful death statute as an individual who has been born alive. Courts have consistently ruled that an unborn fetus is not a "person" for purposes of wrongful death actions.

This principle was established in Justus v. Atchison, where the California Supreme Court held that a stillborn fetus is not a legal person under California's wrongful death statute, preventing parents from bringing a wrongful death claim (Justus v. Atchison, 19 Cal. 3d 564, 582, 139 Cal. Rptr. 97, 565 P.2d 122 (1977)). The court reasoned that wrongful death actions must be statutory in nature, and because the legislature had not extended wrongful death protections to fetuses, courts could not do so.

The same reasoning was reaffirmed in Keeler v. Superior Court, where the California Supreme Court ruled that a fetus is not a human being under California's murder statute, reinforcing the idea that legal personhood begins at birth (Keeler v. Superior Court, 2 Cal. 3d 619, 631, 87 Cal. Rptr. 481, 470 P.2d 617 (1970)).

As a result, California parents cannot bring wrongful death lawsuits for the loss of an unborn child, regardless of the gestational age at the time of loss.

Pain and Suffering and Emotional Distress as Recoverable Damages

While wrongful death claims are unavailable, a mother may still recover pain and suffering damages in a personal injury lawsuit if the miscarriage resulted from another party’s negligence. California law recognizes emotional distress as a compensable form of damage, and a miscarriage undeniably intensifies the pain and suffering experienced by the victim.

California’s Civil Code Section 3333 allows plaintiffs to recover non-economic damages, which include emotional distress, anxiety, grief, and the impact on quality of life. Courts have acknowledged that a miscarriage resulting from an accident dramatically worsens the emotional and physical trauma experienced by the injured party.

For example, in Burgess v. Superior Court, the California Supreme Court ruled that a mother could recover pain and suffering damages for injuries sustained during childbirth, even though no wrongful death claim was available for the loss of the child (Burgess v. Superior Court, 2 Cal. 4th 1064, 1075, 9 Cal. Rptr. 2d 615, 831 P.2d 1197 (1992)). This case affirms that the mother's suffering is an independent, compensable harm under California law.

Thus, while a wrongful death claim is unavailable, a plaintiff can and should pursue damages for the emotional and psychological impact of losing a pregnancy due to negligence.

Causation Challenges in Miscarriage Claims

Although a miscarriage can be a recoverable form of damage, proving causation can be challenging. The defense may argue that the miscarriage was not directly caused by the accident but instead resulted from pre-existing conditions or unrelated factors.

Key issues in proving causation include:

1. Temporal Proximity

The closer the miscarriage occurs to the accident, the stronger the causal connection. If a miscarriage happens within hours or days of an accident, it is easier to argue that the trauma caused the pregnancy loss. However, if weeks pass, the defendant may argue that other factors contributed to the miscarriage.

2. Medical Evidence

Strong medical documentation is crucial to establishing causation. A plaintiff must show that:

• The trauma from the accident directly caused the miscarriage.

• No pre-existing medical conditions made the miscarriage inevitable regardless of the accident.

• The treating physician can testify that the accident was a substantial factor in causing the loss of pregnancy.

3. Plaintiff’s Medical History & Pre-Existing Conditions

If the plaintiff has a history of miscarriages, pregnancy complications, or high-risk pregnancy factors, the defense may argue that the accident was not the primary cause of the miscarriage. The defense may cite previous medical records to argue that the miscarriage was more likely to occur due to pre-existing factors rather than the accident itself.

Conclusion

In summary, California law does not permit wrongful death claims for unborn fetuses. However, a mother can recover pain and suffering damages if she loses a pregnancy due to another party’s negligence. Proving causation is key, and plaintiffs must provide strong medical evidence to link the accident to the miscarriage. If the miscarriage occurs soon after the accident, and the mother has no significant history of pregnancy complications, the claim for emotional distress damages is more likely to succeed.

If you or a loved one has suffered a miscarriage due to someone else’s negligence, contact the experienced personal injury attorneys at Phillips & Associates to discuss your legal options.