What are the rights of expectant parents for the death of a fetus from an incident like a slip and fall or medical malpractice? Surprisingly, because a fetus is not considered a person under Florida’s Wrongful Death Act, Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), neither parent may bring a claim for wrongful death or for loss of companionship. U.S. v. Dempsey, 635 So.2d 961 (Fla. 1994).
Because the law treats the death of a fetus as a physical injury to the mother, the mother may bring a personal injury action against the at-fault party. The action can include a claim for emotional injuries.
The viability of a father’s claim for negligent infliction of emotional distress is far less certain. The answer depends, in part, on the mysterious and unpredictable “impact rule.”
In Florida, whether a person may recover for emotional injuries is governed by the impact rule. Florida’s impact rule provides as follows: “[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical illness.” Fla. Dep’t of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007).”
The rule was developed to limit “fictitious or speculative claims.” Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850.
In Tanner, the Florida Supreme Court decided that the impact rule did not apply in a case involving the stillbirth of a fetus that was 41 weeks old. The court did not decide whether the rule applied in cases involving younger fetuses. That decision was made, in part, in Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So.2d 971 (Fla. 4th DCA 2004), where the 4th DCA decided that the impact rule did apply in a case involving the loss of a fetus that was between 15 and 18 weeks old.
Accordingly, what we know in Florida is that the impact rule does not apply where the fetus is 41 weeks or older, but does apply where the fetus is less than 18 weeks old.
In cases where the rule applies, the father has little chance of recovering for emotional damages. Hence, until the Florida Legislature or other appellate court decisions speak on the subject, we do not know if a father has a case for the loss of a fetus between 19 and 40 weeks old.
The impact rule has come under much criticism for being applied on an ad hoc basis. Its application in cases involving the loss of fetuses is no exception. The standard will develop as it is addressed by the courts in different factual scenarios.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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