Six years after the General Assembly created a cause of action for the wrongful death of a fetus, a Virginia circuit judge has ruled that the mother is not the only family member that can claim damages under the law.
A father and siblings of the stillborn fetus also can be beneficiaries under a fetal death claim, Fairfax County Circuit Judge David A. Oblon ruled.
The decision expands the scope of a rarely used provision of the state Wrongful Death Act. Some warned of a proliferation of claims when the Assembly voted to add an action for fetal death, but reported cases have been few.
Oblon’s July 12 opinion came in Healey v. Perfectly Female Women’s Health Care PC (VLW 018-8-067).
The plaintiff is Amparo Lopez Healey. Oblon’s opinion explains that she lost her baby towards the end of her pregnancy, resulting in a stillbirth. Citing the Wrongful Death Act, she sued several facilities and physicians involved in her treatment.
Healey filed the action as “the natural mother of the fetus,” but she added the father, brother and sisters of the fetus as statutory beneficiaries.
OB/GYN Farimah Farahani DO filed a demurrer objecting to family members other than the mother claiming damages as beneficiaries.
Oblon said the parties disputed whether a fetus is a “person” to permit additional statutory beneficiaries, but the judge said the issue could be resolved without reaching the personhood question.
Interpreting “unambiguous” language of the wrongful death statutes, Oblon overruled the demurrer and held that parents, brothers and sisters of a dead fetus can be statutory beneficiaries.
New subsection added
The 2012 legislation did not simply add the term “fetus” to existing provisions of the Wrongful Death Act. It added a new subsection, § 8.01-50(B) creating a cause of action for the wrongful death of a fetus. The mother of the fetus is granted the right to bring an action.
In § 8.01-50(C), new language said that fetal death actions “shall be brought by and in the name of the natural mother.”
Section 8.01-53(A)(ii) provides that wrongful death damages are to be distributed “to the parents, brothers, and sisters of the deceased” when there is no surviving spouse or children.
Farahani’s lawyers pointed to the term “deceased” and argued it could not apply to a fetus. “Deceased” is defined as a “dead person,” the argument went, and a fetus is not considered a “person” under Virginia law.
The doctor also cited the legislative history. One measure – not approved by the Assembly – would have included fetal death in the definition of “death of a person.” The doctor contended the statutes are in abrogation of common law and the failure to tie fetal death with other wrongful death language meant the scope of “statutory beneficiaries” had not been expanded for fetal claims.
‘Personhood’ analysis rejected
Oblon declined to consider the legislative history because he found the relevant statutes to be unambiguous as to their plain meaning.
“The Doctor would have this Court read the statutes in such a way that it declares a fetus to be a nonperson, and thereby unable to be ‘deceased.’ However, the Court does not need to declare a fetus as a person or nonperson,” Oblon wrote.
One statute plainly creates the cause of action for fetal wrongful death and another plainly sets out the type of damages the natural mother may recover, the judge said.
“Neither statute requires a court to determine personhood,” Oblon said.
Oblong described the statutes acting as a chain. Section 8.01-53 states that statutory beneficiaries are entitled to damages awarded under 8.01-52, which in turn permits the awarding of damages under 8.01-50.
“Importantly, this chain of statutes points to the entirety of Virginia Code § 8.01-50, and not exclusively to Sec. A, which deals with wrongful death as a general matter,” Oblon said. “Thus, it also points to Sec. B, which deals with the wrongful death of a fetus.
“If the legislature intended that the only beneficiary in the case of a wrongful death of a fetus would be the natural mother, it would have explicitly pointed Virginia Code § 8.01-52 only to Sec. A,” the judge wrote.
Oblon found support in the 2017 decision of Petersburg Judge Joseph M. Teefey Jr. in Velvin v. Tabb (VLW 017-8-065). He also pointed to the Act’s use of “colloquial language of life and death.”
“When the legislature chooses life and death terms … to describe a fetus showing no signs of life, it only makes sense that it would continue this theme by using terms synonymous with death, such as ‘deceased,’” Oblon said. “This is the only plain, obvious, or rational meaning of these statutes.”
Added blanks on verdict form
Scott M. Perry of Arlington, one of the plaintiff’s attorneys, said the added beneficiaries could be significant if the case goes to a jury.
“At trial, the jury has to find individual damages for each beneficiary. Obviously, if you’ve got only one line for monetary damages on the verdict sheet, versus four lines for Dad and the siblings, it could make a big difference,” Perry said.
Perry noted that cases based on fetal demise are still “relatively unusual” in Virginia. Three years ago, a Virginia lawyer reported a $1 million settlement in a case with a fetal wrongful death component.
The mother and unborn fetus both died as a result of a Suffolk auto accident. The settlement was apportioned with half representing the claim of the mother’s estate and half allocated for the fetal demise.
Farahani is represented by Catherine E. Donnelly and Susan L. Mitchell of Chantilly. The defense attorneys were not immediately available for comment.