On March 16, 2007, the 1st District Appellate Court overturned the trial court and reinstated a wrongful death claim brought by a mother who had an abortion after a car accident in which she suffered a broken pelvis.
The mother was three months pregnant at the time of the car accident. The fetus was not injured in the accident, but was exposed to radiation from her treatment. The mother's doctors told her she could terminate the pregnancy and have immediate surgery to repair her pelvis, wait until the second trimester to reduce risk to the fetus, or have immediate surgery with the risk that she would lose the fetus. The mother chose to terminate her pregnancy. The defendant argued the car accident could not have caused the fetus' death where the abortion was an elective procedure. The trial court agreed and granted summary judgment. The Appellate Court reversed. The Appellate Court held it was up to the jury to determine whether the abortion was necessitated because of the injuries sustained as a result of the defendant's negligence.
Bottom Line:
This case appears to open the door to wrongful death claims brought by women who choose to have an abortion if there is evidence that the pregnancy was terminated as a result of the defendant's negligence. For example, in a medical malpractice context, if a pregnant woman is mistakenly given a potentially toxic medication and chooses to terminate her pregnancy as a result, it appears she can now bring a claim for wrongful death for her aborted fetus.
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