Indiana Appeals Court Rules Couples Cannot Use State's Wrongful Death Statute To Sue for Damages in Death of Fetus

Main Category: Women's Health / Gynecology
Article Date: 01 Apr 2005 - 0:00 PDT


The Indiana Court of Appeals on Tuesday ruled that the state's Child Wrongful Death Statute cannot be used to recover damages in cases of fetal death, even if the fetus in question could have survived outside the woman's uterus, the... Evansville Courier & Press reports. The case at the center of the decision involved Brittany Horn of Evansville, Ind., who miscarried at six months gestation following a two-car collision. Horn then sued the driver of the other car, Kristi Henderson, for wrongful death of the fetus. However, Henderson argued that the case must be dismissed because of a 2002 Indiana Supreme Court ruling stating that the wrongful death statute applies only to "children born alive" (Nesbitt, Evansville Courier & Press, 3/30). Indiana Court of Appeals Judge Edward Najam in an eight-page ruling agreed with an earlier Superior Court ruling dismissing the case, saying that the 2002 Supreme Court ruling prevents wrongful death claims for all fetuses, regardless of whether they could have survived outside the womb. However, Najam wrote that the interpretation contradicts an Indiana law that allows murder charges to be filed for knowingly or intentionally killing a fetus during an act committed against a pregnant woman. As a result, a person in Indiana could be charged with murder for killing a fetus, but a person could not sue for civil damages for the death of a fetus. The state Court of Appeals urged the state Supreme Court to reconsider the issue, the AP/Indianapolis Star reports (Wilson, AP/Indianapolis Star, 3/29). As of Tuesday evening, Horn had not been informed of the court's ruling. Dan Barfield, Horn's attorney, said no decision had been made on whether to appeal the case to the state Supreme Court (Evansville Courier & Press, 3/30).

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