Experiencing the wrongful death of fetus in Arizona can shatter the joy and anticipation that often accompanies the wondrous occasion of becoming pregnant. Parenthood, a significant milestone that shapes one’s life, is usually planned for with great care. However, when the opportunity to become a parent is tragically taken away due to the wrongful death of a viable fetus, the impact is devastating. The repercussions of this loss can resonate throughout a person’s life, causing profound and lasting effects.
The reason for the wrongful death of fetus in Arizona can be the result of many factors, but when the death is the result of another party’s negligence or wrongdoing, the aftermath can be particularly challenging to face. The wrongdoing of another party can include things, such as medical malpractice, and car, truck and vehicular accidents, among others.
When death is caused by another party’s negligence, wrongdoing, or failure to act, and the deceased would have been able to maintain a lawsuit against the wrongdoer themselves “had death not ensued”, certain individuals in a close relationship to the decedent, such as parents of a child may be able to recover monetary compensation for their loss. (Arizona Revised Statute 12-611.) This is because Arizona law recognizes what is known as a wrongful death of fetus in Arizona cause of action. (See, A.R.S. 12-611, 12-612, and 12-613.)
While all 50 states have passed laws recognizing certain individual’s right to maintain an action for wrongful death, in instances where parents lose an unborn child, the courts in the United States differ as to whether the parents can maintain a lawsuit for wrongful death of fetus in Arizona. The majority of states, including Arizona, do allow an action for the wrongful death fetus Arizona.
However, states vary as to the question of whether the fetus had to be viable in order for the action to be maintained. Some states hold that the fetus must have been viable or moving in the womb, while others recognize the right regardless of fetal viability. In states that do not recognize an action for the wrongful death of fetus in Arizona, such actions as intentional or negligent infliction of emotional distress may be recognized as alternative legal means by which to pursue compensation for harms suffered as the consequence of fetal death.
The top injury attorneys at Phoenix Accident and Injury Law Firm near you have more than 15 years of experience in helping clients who have lost their baby after an auto accident. Our offices are conveniently located in nearby Chandler, Peoria, and North Phoenix, and we can meet in-person or over the phone or video call. You can contact us for a free consultation, or read on to find out more.
Moreover, we are here to assist you with other pressing matters that may be causing sleepless nights, such as promptly securing a rental car and connecting you with a nearby doctor who can provide the necessary help. It is essential that your quality of life remains sustainable during the pursuit of justice and compensation for the wrongful death of fetus in Arizona. Our objective as attorneys is not only to ensure long-term support but also to serve as your reliable resource in the short term.
Whether parents could maintain a wrongful death lawsuit for the death of their viable fetus was a controversial topic through the 20th century on which many courts had differing opinions. Up until 1985, Arizona followed the rule that parents could not maintain an action for the wrongful death of fetus in Arizona.
In the 1974 Court of Appeals of Arizona case Kilmer v. Hicks, the court upheld the trial court’s decision to dismiss the parents’ action for the wrongful death of fetus in Arizona who was killed when its mother died in a car accident caused by another driver. (Kilmer v. Hicks, 529 P.2d 706, 22 Ariz.App. 552 (Ariz. App., 1974.)
According to the court, the legislature did not intend to include a viable fetus within the definition of a person for the wrongful death statutes. The court emphasized that if the wrongful death statutes were to encompass a viable fetus, it would require legislative action, as it was deemed inappropriate for the judiciary to expand the law in such a manner concerning the wrongful death of fetus in Arizona. Id.
While the Arizona legislature did not act to amend the wrongful death statutes, the issue of whether a viable fetus was considered a person for purposes of the wrongful death statutes was visited by the Arizona Supreme Court in 1985 by way of Summerfield v. Superior Court Maricpoa Cty.. (Summerfield v. Superior Court In and For Maricopa County, 698 P.2d 712, 144 Ariz. 467 (Ariz., 1985.) At that time, Arizona joined 32 other states when it became the 33rd state to recognize that a lawsuit for wrongful death of fetus in Arizona could be maintained on behalf of a fetus, viability requirements still vary by state.
The court heard Summerfield on a request for relief by “Special Action.” This allowed the party appealing, the parents in this case, to bypass the normal appeal process through the judicial system and have their case heard by the Arizona Supreme Court. The court granted the “Special Action” to save time and costs for parties and the judiciary, as there were multiple other cases in the Arizona court system at that time which raised the same question of whether a fetus was a person was purposes of the wrongful death statute.
In Summerfield, the parents of a baby girl born stillborn sued their doctor for medical malpractice and wrongful death. The trial court dismissed the wrongful death claim for failure to state a claim, saying that a fetus was not a person for purposes of the wrongful death statutes. On appeal, however, the Supreme Court of Arizona reversed the lower court’s decision, holding that for the purposes of Arizona Revised Statute 12-611 a viable fetus was a person, and a lawsuit for the wrongful death of a viable fetus could be maintained by the parents.
Although the court referenced the holding in Kilmer, it ultimately found that while the right to maintain a wrongful death lawsuit is now governed solely by statute, wrongful death has its origins in common law, and absent an express prohibition by the legislature to foreclose the possibility of the judiciary to expand a law, the judiciary could interpret and define the law.
The court stated, “[j]udicial expansion and refinement of legal concepts characterize the common law–any legislative intent to foreclose such traditional judicial activity should require positive expression.” (Summerfield v. Superior Court In and For Maricopa County, 698 P.2d 712, 144 Ariz. 467 (Ariz., 1985.)
Having determined that it had the ability and authority to hear the case, the court moved to the central issue, does the term “person” in A.R.S.12-611 include a fetus. Arguments against including a fetus as a person for purposes of wrongful death of fetus in Arizona include that the fetus is not an independent life but is reliant on its mother and that the statue requires that the deceased would have been able to maintain an action to recover for their injuries had death not ensued.
To make its determination as to whether the fetus is an independent life, the court relied on scientific advancements. In this era, it is now recognized that a fetus could survive outside of the womb before natural birth. In fact with such advancements in birthing techniques, the meaning of natural birth has changed. Science has shown that the fetus is not as reliant on its mother for the whole pregnancy period as people previously thought, but that at some point in gestation, prior to birth, a fetus could be viable.
The court stated, “[w]e believe that the common law now recognizes that it is the ability of the fetus to sustain life independently of the mother’s body that should determine when tort law should recognize it as a “person” whose loss is compensable to the survivors.” (Summerfield v. Superior Court, Maricopa Cty., 144 Ariz. 467 (1985.)
The court also had to address an issue with the interpretation of A.R.S. 12-611. In order for a statutory beneficiary, such as a parent, to be able to bring a lawsuit for wrongful death, the deceased themselves must have been able to maintain an action for their injuries against the wrongdoer “if death had not ensued.” (Arizona Revised Statutes 12-611.) The question for the court then was whether the fetus would have been able to maintain a lawsuit if it had lived. It found in the affirmative, that but for the injury causing death, the fetus would have been born and able to maintain a lawsuit for any injuries suffered while in the womb.
The court stated:
The majority rule, which now recognizes that a death action will lie under the circumstances present here, acknowledges that the common law has evolved to the point that the word “person” does usually include a fetus capable of extrauterine life. The majority also recognizes that the common law now holds that if the fetus survives it may recover for injuries sustained in the womb.
The common law now also permits a death action if the infant survives birth and then dies from injuries sustained in the womb. The majority finds no logic in the premise that if the viable infant dies immediately before birth it is not a “person” but that if it dies immediately after birth it is a “person.” (Summerfield v. Superior Court, Maricopa Cty., 144 Ariz. 467 (1985.)
The shift from Kilmer 11 years earlier to Summerfield was due to various reasons. The idea that a viable fetus was a person for purposes of wrongful death of fetus in Arizona actions had gained traction in many U.S. jurisdictions. Additionally, an analysis of the evolution common law, judicial interpretation and its relationship to statutory law revealed that there is room for the judiciary to interpret the law and further define it when the legislature leaves such a space for the court.
Regarding the wrongful death of fetus in Arizona, the court concluded that the legislature intentionally provided room for the courts to interpret and define the statutes. Furthermore, the court acknowledged the legislature’s inclination to enact laws that safeguard viable fetuses and provide avenues for compensation for affected individuals.
One issue looming for some states that have now recognized a right to maintain a lawsuit for the wrongful death of fetus in Arizona is whether the fetus must have been viable. Some states, such as Texas allow for a wrongful death of fetus in Arizona lawsuit to be maintained regardless of fetal viability.
Texas Civil Practice and Remedies Code Section 71.001(4) states that “’ individual’ includes an unborn child at every stage of gestation from fertilization to birth.” Further in regards to the issues of whether a fetus would have been able to maintain a lawsuit, Texas law states that the wrongful death of fetus in Arizona lawsuit may be maintained only if the decedent would have been able to bring an action for “the injury had the individual lived or been born alive.” (Texas Civil Practice and Remedies Code Section 71.003.)
However, unlike Texas, in Arizona, the fetus must be viable. While the court in Summerfield did not define at what stage a fetus becomes viable, it did state that the fetus must be “capable of extrauterine life.” (Summerfield v. Superior Court, Maricopa Cty., 144 Ariz. 467 (1985.) Commonly, a fetus is considered viable when it reaches that stage of fetal development when it can sustain life outside of its mother’s womb either naturally or by means of artificial life support.
While the case law may still developing in Arizona, in Jeter, the Arizona Court of Appeals held that a cryopreserved fertilized human egg three days old is not a person for purposes of A.R.S. 12-611, and therefore the trial court had correctly dismissed the parent’s wrongful death of fetus in Arizona claim against the defendant. (Jeter v. Mayo Clinic Arizona, 121 P.3d 1256, 211 Ariz. 386 (Ariz., 200.5)
Since the point at which a fetus becomes viable may vary and lacks a universal definition, each wrongful death of fetus in Arizona case must be evaluated individually. In determining viability, the court may consider factors such as the stage of pregnancy, medical records, autopsy reports, and other relevant information.
Contact Us For your rights in Wrongful Death of Fetus in Arizona.
Experiencing the wrongful death of fetus in Arizona, where you lose a child without having the opportunity to spend time with them, can be profoundly devastating. The physical and emotional trauma from the loss can be difficult from which to heal. When your unborn child’s loss was due to another party’s negligence or wrongdoing, the situation can become even more challenging to bear, even though you may be entitled to compensation for the harms you suffered. Understanding the law, and fighting for justice and compensation can be complicated and frustrating during a time when you should be focused on healing.
Seeking the guidance of a skilled attorney who is well-versed in the laws surrounding wrongful death of fetus in Arizona can be invaluable. They possess the knowledge and expertise to ensure that your rights are safeguarded throughout the legal process. You do not have to navigate the challenging path of seeking legal redress for the wrongful death of your unborn child in Arizona alone.
At Phoenix Accident and Injury Law Firm, located near you, we possess over 15 years of expertise in assisting clients in obtaining rightful compensation for cases involving the wrongful death of fetus in Arizona following car accidents. When you’re ready to talk, please contact our office to arrange a free initial consultation by phone or at our Chandler office, conveniently located in your area.
If you need medical treatment after a car accident contact Phoenix Accident and Injury Law Firm near you in nearby Chandler, AZ to speak with an experienced personal injury attorney. We provide personal injury legal services to clients in your area including Chandler, Gilbert, Mesa, Scottsdale, Tempe, and Peoria.