If someone’s negligence in Florida causes a pregnant woman to have a stillbirth (lose the fetus), the mother has a right to bring a claim for mental pain and anguish, medical bills and lost wages incurred relating to the pregnancy.
If the father was not involved in the accident or incident, whether the father can bring a claim for mental pain and anguish will depend on the “age” of the fetus at the time of the stillbirth. If the unborn child is stillborn during full term labor or above 41 weeks old, Florida law allows both parents to recover for mental pain and anguish if someone else caused the stillbirth.
If the father was not involved in the accident, and the baby in the womb was fifteen to eighteen week-old fetus, at least one court in Florida has said that the father does not have a claim for mental pain and anguish. Thomas v. Ob/Gyn Special. of Palm Beaches, 889 So. 2d 971 – Fla: Dist. Court of Appeals, 4th Dist.
As you can imagine, a stillbirth can be caused by a car accident, slip and fall, medical malpractice and many more types of accidents. You are also entitled to be expenses to see a therapist if you need or want to see one. The case that stated this is Tanner v. Hartog.
To get money for mental pain and anguish, you would need to prove the following:
- Someone else caused your accident; and
- The loss of your fetus was caused by the accident.
Motor Vehicle Accidents
The type of motor vehicle accident that in Florida will determine whether Personal Injury Protection (PIP) will pay for some of your medical expenses and lost wages. If someone’s carelessness, in certain types of Florida vehicular accidents, caused your injury then you may need to prove some type of permanent injury or death in order to recover non-economic damages (e.g. pain, suffering, mental anguish, inconvenience). Florida Statute 672.737(2).
This is known as the no-fault threshold. There are certain situations where the tort threshold does not apply in a motor vehicle accident case.
If someone’s negligence in a vehicular accident causes a miscarriage in a motor vehicle accident and the tort threshold does apply, you cannot bring a tort action solely based on the argument that miscarriage constituted a permanent injury for threshold purposes under Florida Statute §627.737.
In that case, the Court held that evidence of permanent injury, and not miscarriage alone, was required. Styles v. Y.D. Taxi Corp., Inc., 426 So.2d 1144 (Fla. 3d DCA 1983).
Do not assume that the tort threshold applies in your case unless you completely understand the law.
If you can exceed the tort threshold, then in order to get money for mental pain and anguish you would need to show that someone was at fault for your accident, and the accident resulted in the loss of a fetus. You need a doctor to testify or state that the accident caused the loss of your fetus.
If you are in the first trimester, and you do not lose the fetus immediately after the accident, you may have a very difficult time proving that the loss of the fetus was caused by the accident.
I learned this when I was handling a case involving a loss of a fetus. I remember speaking with an OB/GYN (doctor) and he told me that the safest place inside a car in an accident is inside the mother’s womb (belly). The mother was in a car accident and lost the fetus about 15 days or so after the accident. It was in the first trimester.
The OB/GYN said that he could not relate the loss of the fetus to the car accident. I asked the OB/GYN whether the stress from the crash caused her to lose the fetus.
The doctor told me that there were no medical studies that link a mother’s stress to the loss of a fetus. He said that this is true even if you are in a car accident that had a heavy impact and significant property damage.
Even if you believe that your ability to prove that the accident caused the loss of your fetus, you should still submit any medical bills and records to the insurer for the at fault driver or company as soon as possible following the accident. The quicker that the bodily injury liability insurer gets proof of your damages, the quicker they can authorize settlement of your case (if warranted).
Just as you want documentation of quality when you buy a diamond ring, the liability adjuster wants proof of your injuries (medical bills, records, lost wages, etc.).
Now if you were in a car accident or other type of accident, and you lost your fetus at the accident scene, or very shortly thereafter, a doctor may state that the loss of your fetus was due to the accident.
Let’s take a look at some example cases below:
1. A driver of a car, truck or other vehicle, that is that was subject to Florida’s PIP requirement, causes your injury. The at-fault driver has a bodily injury (B.I.) liability insurance policy that has split limits (e.g. $10,000/$20,000 B.I.). Bodily injury liability insurance does not pay to get your car fixed.
That is done through collision coverage or the at fault driver’s property damage coverage.
If you lost your fetus after being hit by a driver who had a $10,000/20,000 BI policy, and you can surpass the tort threshold, the most that each parent can get is $10,000. This is true even if the mother has had much more mental pain and anguish than the father.
In Florida, you can still make a claim against the owner of the car, as well as the employer of the driver assuming the car was being driven for work purposes.
2. If you lost your fetus from an accident caused by a city, state, or county official, generally speaking the most that each parent can recover is $200,000, but in no event can the total recover be more than $300,000. There are limited exceptions to this rule.
So, as an example, assume that you are a passenger on a Miami-Dade county bus. The bus runs a red light and crashes into a car. You lose the fetus at the scene of the accident. The father has also been affected by the loss of the fetus, but not nearly as bad as you. The most you can recover from Miami-Dade county transit is $200,000, and the most that the father can recover is $100,000.
You could also be awarded the money equally with you getting $150,000 and the father getting $150,000. If you had medical bills of $20,000, the most that you can still get from the government is $200,000, which would be for all of your damages.
Remember that if the city, state or county caused your accident – or an employee of one of them – there are notice requirements that you must follow to be able to sue them. If the city, state or county caused your accident, you can also make a claim with your uninsured/underinsured motorist car insurance company if you purchased this coverage.
How much money are you entitled to if you lose your stillborn child?
As in any personal injury case, the answer is it depends on many factors. You need to prove that someone caused your accident. You need medical testimony stating that the loss of your unborn child was caused by the accident. Also, just because you can get a big verdict does not mean that you will see a penny of it.
This is especially true in Florida where someone who owns a car is not required to have liability insurance. However, many people in Florida have liability insurance. You need to see if there is insurance that may help pay for your accident in Florida.
The largest award in Florida that I have heard of involving a case where a mother lost her fetus is the case of Kammer vs. Hurley. The 4th District appellate court upheld (approved) an award of $2.5 million to each parent for pain and suffering. This was addition to past medical expenses as well as past and future therapy.
Mr. and Mrs. George Hurley married when they were both in their forties. Each wanted desperately to have a child and they tried to conceive a child even before the marriage. After Mrs. Hurley became pregnant she was very conscientious about her pregnancy.
She took good care of herself and her child-to-be by eating well, took pre-natal vitamins, and followed her doctor’s instructions. All indications were that the pregnancy was going very well and that the fetus was developing normally.
Ultrasound and amniocentesis tests were performed and it was learned that they were going to have a son. Excited about this prospect, the Hurleys picked a name for the child, held a huge baby shower attended by many friends and family, and fixed a room in the house with baby equipment and decorations.
Mrs. Hurley went into full-term labor. The defendant-doctor arrived when Mrs. Hurley began pushing to deliver the baby. When she was not able to give birth through the birth canal, Mrs. Hurley requested that the defendant-doctor perform a C-section.
The defendant-doctor ridiculed Mrs. Hurley by saying she was not pushing hard enough, she was a coward running from the pain, she was lazy, and she would never be a good mother because she could not push out the baby.
There was also testimony that the defendant-doctor was too busy flirting with the nurse to pay proper attention to Mrs. Hurley. Ultimately, just moments before delivery of this full-term fetus, the defendant misused a vacuum extractor and crushed the skull of the fetus, resulting in a stillbirth.
The Hurleys were truly, eagerly anticipating the birth of their first child. Mrs. Hurley was unable to conceive any other children after this incident. (I think because of her age) The defendants’ actions were in any way responsible for her inability to conceive.
Just because the Hurleys were awarded this much money, does not guarantee that you will get this much money for the death of your unborn child. Every case is different. If the Hurleys lost the baby in the womb because they were hit by an uninsured driver, it would have been possible that the Hurleys would not have been able to collect any money.
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