Pregnancy and Car Accidents - Fetal Injury, Miscarries, Death & Getting Paid
Do You Need Legal Help For Car Accident Pregnancy Injury?
Table of Contents:
Welcome to Ehline Law Firm Personal Injury Attorneys, APLC. Whether you are pregnant or not while motoring can have many implications for the parturient woman and the new life gestating within her. I am attorney Michael Ehline. I am a highly recognized personal injury attorney in Los Angeles. I have over 15 years of experience in law and motion and other aspects of car accident cases.
Happy smiling pregnant driver woman is standing by a car near the road with green grass, summertime.
The term baby blues was not coined by mistake. I know first hand, the incredibly negative and positive hormonal changes that take place in females during all different times of their terms. I am also a father to two kids that I helped deliver. I am an expert in the law of driving while pregnant and have received multiple consumer and peer awards for my work as a serious injury lawyer. From the glowing skin, swelling, painful feet, bloating, to the craving of pickles, I have accurately predicted it's best to leave women be when they are pregnant unless they ask for help!
Also, as a Los Angeles injury lawyer, I have represented many seriously injured women who have miscarried children or been smitten down themselves due to car accidents. I have also represented victims injured in car accidents caused by pregnant women. As a researcher, I have pulled the available records deal with pregnancy and car accidents. Below I will discuss some of my findings. And I will also cover some dangers with driving while pregnant, some legal points of view, and the law of torts.
Also, I will discuss the risks to women and their fetuses, and the risks of injury to others sharing the roads with pregnant women.
There are two main aspects of personal injuries while driving pregnant:
- The increased statistical chances of pregnant women crashing cars.
- The increase in complications related to bodily injury claims to the mother and her unborn child.
As noted in the introduction, pregnancy can result in diverse physiological and lifestyle alterations. And these hormonal and emotionally charged personality differences are suspected of increasing driving and driving error cases. In one study, it was determined that the greatest risk for driving while pregnant accidents exist during the second-trimester comparing to the baseline risks of women not pregnant.
Next, based upon another study, 2.9% of impregnated females stated they suffered car accident-related injuries before delivery. Based upon that limited data, that means nationally, approximately 4 million women carrying babies get wounded in vehicle wrecks annually. (Source). Sometimes the knocked up female is at fault, sometimes the fault lies with another. According to your definition of "fetus," and when you think life begins, an estimated 1500 to 5000 yearly fetal deaths occur nationwide from motor vehicle collisions. So this is really a political battle and an argument for a jury. When someone else’s negligence caused a vehicle collision, the plaintiff victim remains legally entitled to monetary compensation for legal damages, and losses arising from the crash.
As noted on our car accident page here, recoverable losses might include payments for past, present, and future hospital bills. But damages are also available for things like lost earnings, loss of a job, pain, and suffering, destruction of personal property, and other reasonable losses directly resulting from the defendant's partial or total fault.
Yes. Sadly, as reported by NBC News, nationwide, a 42% greater risk exists for pregnant v. non-pregnant vehicle operator car crashes. As noted, the risk of driving while pregnant collision remains especially present during the fourth month of gestation.
“It amounts to about a 1 in 50 statistical risk of the average women having a motor vehicle crash at some point during her pregnancy.” (See L.A. Times).
Possibly. There are no official Los Angeles specific statistical studies. Still, based on the sheer number of pregnant women walking, riding public buses, taking the metro rail, or some other form of transportation, it is likely to be higher than in other similarly-sized cities in the U.S.
*So more likely than not, there is an increased risk of a pregnancy-related car accident occurring in L.A. And when compared to areas like Ventura County, with denser white populations, it also seems there is a risk of more Hispanic pregnant women being in an accident. Most of all, Los Angeles County, with its high minority population, has a lot of pregnant women. Possibly more than in most other counties and cities.
Generally, there are three types of pregnancy issues we consider when screening a case as Los Angeles car accident attorneys as follows:
- Teen Pregnancy.
- Related Teen/Adult Pregnancy Matters.
- Adult Pregnancy.
When considering signing up a personal injury car accident case, we interview each client and use our own internal algorithm to look at the potential winning and losing factors. Sure, in some cases, we can make money for the firm. But we want to line our client's pockets. If we determine the risks versus benefits in pursuing a claim that will work against our client financially, we look at that before accepting or rejecting a case.
According to the National Highway Transportation and Safety Administration ("NHTSA") "immaturity and inexperience are primary factors" as well as reckless, high-risk actions behind the wheel contribute teen driving deaths as follows:
- Night driving.
- DUI and DWI from marijuana, alcohol, prescription, and other illicit drugs
- Driving distractions from smartphones and other teenaged passengers.
Here is what an L.A. jury and an insurance adjuster may already know:
- LA County boasts tax-funded teen pregnancy and public health care costs of almost $270 million every year. These tax payments are used to cover things like welfare for teen moms and their children, the costs of incarcerating teens, etc. And these are also additional federal and state tax-funded teen pregnancy expenses passed on to workers. So that is a lot of tax revenue that could have gone to infrastructure and job training, for example. Amazingly, females under 18 years old who make babies will cost L.A. County taxpayers an average of $4,080 per year. And the costs per baby, per year in L.A., reaches around $1,430 per year. (Source). But there are additional costs to taxpayers and insurance companies in the form of liability auto insurance payouts for pregnant while driving accidents. Obviously, there is a correlation here, making pregnancy teens a greater danger to other road users.
What About Age & Ethnic Disparities in LA County Live Births?
- Noteworthy here is that 13.5% of reported live childbirths in L.A. happen in South Los Angeles. Out of that figure, over 25% of live birth givers were mere babies themselves, being 15 years of age or less! Almost 9.8% of all live births in Los Angeles, a whopping 15,000 per year, or 9.8%, are delivered by teenaged girls 19 years of age or less! And 35% of teen mothers are under 18. Next, birthrates had by Latinas ages 15- to 17 remain at least twelve times higher than for Asiatics in the same risk category. And when comparing Latinas to Caucasian moms, the live birth rate remains seven times higher for Hispanics. For blacks, their teen birthrate is 6.5 times greater than Asians and 3.6 times greater than white teenaged mothers. So the bottom line is that many pregnant while driving accidents in Los Angeles will likely involve more blacks, Latinos, and Orient origin teens 15 years of age or under than in other parts of the country. Typically, black and Latino teens are lower to zero income earners. So there remains a risk they will operate a motor vehicle without the mandatory minimum financial responsibility requirements in place. Black women also die at three times the rate of whites during childbirth. So each group has unique challenges when considering pregnancy, driving, and staying safe.
So we injury lawyers have to weigh all of this data. Why? Because you had better believe the other side will be looking at actuarial stats based upon race, and social media profiles. And they even research the teen's publicly available criminal record, if any, as well as any other issues like truancy, past-due child support, attitude problems, etc. During the defense medical exam, the defendant's paid doctor will do their best to elicit any history that can damage the injured client. And they know teens are generally easier to manipulate.
Personal injury attorneys will be spending their own money to advance the client's costs. And we spend thousands of hours preparing cases for trial. If the teen client blows it, she blows it for her lawyer too. In fact, many lawyers have said on more than one occasion, "I make my money from the cases I don't take." So one tip for teen moms is to stop posting on Instagram and other accounts or have a private account instead.
Just don't share it with anyone other than immediate friends and family. And NEVER post anything that could make it look like you are lying about being hurt. If a teen can't hold their tongue, avoid incriminating statements, and keep a low profile, that could be all she wrote for the lawsuit.
What Are Some Other Problems Inherent in Teen Aged Personal Injury Clients Generally?
If an injured teen mom has no manners or acts a fool in front of a jury, or claims adjuster, we can still win the case. But now we may get an award so small that we can't even win our costs back, let alone get the victim enough money to pay for all their damages. Nice clients with mild manners, win money, and cases. Bad clients can win the case and get nothing.
The adage that "sugar will get you more than salt" holds. A sympathetic jury is a key to winning any legal case. But a sympathetic client makes a jury more sympathetic. That's just reality. Most of all, we need to have a good chance of getting paid back, in addition to a truckload of money for our client(s), or we could lose everything. Also, unless the teen mom gets legally emancipated, the lawyer will need a parent or guardian ad litem to sign for the teen mom.
In the Marine Corps. we often told our drill instructors, when asked why we were such terrible recruits, that "it's the private's parent's fault, sir!" And as funny as it sounds, children mimic their parent's good and bad behaviors in many ways. Whatever the reasons, the societal burden of children having children out of wedlock does generally seem to pass down generationally.
Sometimes the child is spared and is just a good kid. But in a car accident case in need of a legal guardian, a parent or guardian who participates in the legal case is vital. Think about it; some of the parents of these newly impregnated teens are barely adults themselves. Many guardians might be foster, or absentee parents, or some other surviving relative like grandma.
Many legal guardians are substance abusers, emotionally, or even physically abusive to pregnant teens to begin with. It's not all bad, other parents are hard-working, caring, concerned, and devastated their unmarried daughter is pregnant, let alone that she found herself in the predicament of a car crash. And concerned parents like this usually work with us to ensure their daughter gets a decent monetary recovery for her wreck. But it is usually a very emotional experience seeing the worry responsible parents of teen moms suffer.
- She's Pregnant, Now What?
Her parents spent years nurturing and protecting their daughter from all sorts of dangers on the road and off. But now, some parents must face the prospect of seeing her pregnant as a teen. Here she is, barely with a learner's permit and pregnant. Now she is looking for a job since she can't go to college. Mom and dad may be handing their young daughter the keys to the family car so that she can get to and from her job at Subway Subs, or McDonald's, for example.
So here she is, learning to drive, pregnant, and she already has a full-time career in fast food. Noteworthy here, sometimes the same parents signing her retainer had loaned their daughter the very car that crashed. The key here is, for parents to set aside emotions and help their daughter recover money for her legal case.
What Are Some Other Interesting Female U.S. Teen Pregnancy Facts for the Year 2017?
In the United States, there was a reported total of 194,377 babies born to teen girls between 15 and 19 years old. That's a whopping birth rate of 18.8 pregnancies per 1,000 teen girls of the same ages nationwide! Although this figure represented a 7% decrease from 2016, possibly due to the use of various birth control methods, or outright abstinence, the U.S. teen pregnancy rate remains more significant than in similarly situated countries. (Source).
What this says is that although it is more likely a pregnant teen will be involved in a car accident in L.A., it doesn't mean they can't get hurt driving up to Lake Arrowhead, or some small town in Ohio. It also shows us that teenaged pregnancy may be leveling off, which is a good thing for everyone.
What Are Some Interesting General Teen Crash Stats for all Genders?
Teens, especially pregnant teens, are in an alarming number of automotive collisions as they learn the ropes of driving safely. As a general rule, teens are twice as likely as similarly situated adults to be involved in a car crash with fatalities. Although from 2007-2016, there was a 46% decrease in teenagers, ages 15-18 passing away, statistically, per capita, teens die more in car accidents than adults. As will be discussed, there are many rebellious, self-destructive things that teens tend to do more than grown-ups, as most adults are well aware. No specific numbers are dealing with teen moms and car accidents. But the below numbers represented reported statistics about all teens in motoring accidents nationwide in 2016.
- A seat belt or harness device did not restrain at least 58% of teens aged 15 to 18 years old who died in traffic accident deaths.
- There were 2,082 teen passenger car operators in some type of fatal motor vehicle accident collision.
- Distracted driving played a role in 10% of reported motor vehicle fatalities that same year.
- At least 2,288 teens 15 through 18 years old died in passenger vehicle accidents.
- DUI/DWI was involved in 20% of the reported teen motoring fatalities.
The bottom line, teen drivers, in general, do not make the best defendants, or plaintiffs, especially in cases of disputed liability, such as a disputed liability left-hand turn accident case or head-on collision with a motorcycle or fixed object. But with teen moms, there is also bread in the oven we have to think about. And this can get tricky for a pregnant mom. So as lawyers, we also want to try and do justice.
- Are pregnant teens More Reckless?
Yes, almost universally, teens are far more reckless than adults. So it goes without saying that a female teen under the stress and excitement of pregnancy will be more reckless than an adult female. And it's hard for a severe accident lawyer with bills, a staff, and family, to deal with teens as clients. After all, they are so rebellious, fancy foot, and carefree.
An expectant teen mom may seem less concerned about her mortality and health of her baby than a grown woman might. For example, she may not wear a restraint device. Sometimes, she is careless; other times, she may be concerned about avoiding injury to her fetus by strangling it with a seatbelt.
- You May Lose a Ton of Money if Not Wearing a Seatbelt?
In addition to losing pain and suffering damages for no insurance, under Prop 213, not wearing a seatbelt can ruin the girl's case. California's Seatbelt Defense allows the defendant to blame the plaintiff for the injuries. Since the bodily injury portion of the case is so important, she may not even be able to hire a lawyer. So now, she is on the hook for her own medical bills and related expenses, because no one will represent her accident claims.
Below, we will discuss how to wear a seatbelt and the latest innovations in seatbelt technology for pregnant women. Just remember injury lawyers are mostly contingency fee attorneys. And since there will likely be a mandatory lien of your case proceeds from Medicaid, Tri-Care, Tri-West, Medicare, Medi-Cal, etc., we don't want to fight over the money you need to pay your bills. And at the same time, we lawyers can't work for free.
So you have to consider all of this as a teen driver or guardian. But first, let's look at teens and their more likely aversion to seatbelts when compared to a similarly situated adult.
Tragically, seat belt use remains lowest among teenaged drivers. As noted above, in most deadly traffic accidents involving teens 15 through 18 years of age, most occur to occupants not strapped into their car seats. In 2016 alone, a reported 818 unstrapped teen drivers died in passenger vehicles. Out of those reported deaths, 58% of passengers who died were also NOT wearing buckled up during the fatal crash.
Like passing on a sword to an apprentice in medieval times, handing a teen the keys to the car is a significant step towards gaining independence. But like many teens, they still may feel invincible, do drugs, or engage in premarital sex. In addition to STDs, they may now face pregnancy. If they are pregnant or not, and whether a teen hates buckling up, it is not a choice; it's the law!
- Other Reasons Why Lawyers Don't Sign Up Driving While Pregnant Cases.
Teens are inexperienced as drivers and in just about everything else. One area that can be tough is the left-hand turn accident and novice teen drivers. And without an eyewitness, the jury may just assume it was the teen's fault.
So like it or not, PI lawyers have to be realistic and cannot just sign up every case. Now, couple this with a pregnant teen, and we have an even more complicated case when the liability for who caused the accident is not cut and dry. As noted above, pregnant women are already at considerable risk of causing an accident. Mix the teen factor in, and the case value diminishes.
Teen Pregnancies Pregnancies and DUI/DWI/Marijuana.
As noted above, teen moms drinking alcohol is among just one of a plethora of problems facing them while behind the wheel. So, in addition to the civil side damages it causes to the world, underage, pregnant drinkers can force additional criminal justice administration expenses on our tax system. The property damage alone caused by teen drinking and driving is astronomical. (Source). It's not just teen moms who smoke weed and drive either.
This type of substance abuse and driving causes over 500,000 deaths per year. (Source). Sadly, some babies are born addicted to drugs or retarded from the mom's stupidity. Do we even want someone like this driving? Really? Of course, on the other side of the coin, not all teens are car accident defendants. We just covered the reasons why there is a greater chance of that being true.
Noteworthy here is that societal bias against pregnant teen drivers correlates with human nature and academic research. As they say, stereotypes exist for a reason. The defense will use all of this real or imagined behavior to try and get your case thrown out of court. So PI lawyers will need to be careful when signing up a teenaged client. Winning the case means having a winning client.
Although pregnant teens offer far different considerations in matters of maturity, liability, causation, as well as jury plain old likeability, both adults and teens are susceptible to death, or even a miscarry while driving. We can't let bias rule our decisions when considering a pregnant while driving case.
Male jurors can't assume that it was the female's fault just because she is more vulnerable, emotional, and estrogen-driven during the gestation period. Female jurors can't always think their bias can prove what really happened either.
It is said that there are three sides to every story:
- Your story.
- The other side's story.
- What actually happened.
Your injury lawyer's job is to help write a novel for the trier of fact that is convincing enough to arrive at the version of truth most favorable to your side of the story.
Miscarriages and Related Pregnancy While Driving Complications.
Even a minor fender bender can injure or kill an unborn child. The force and thrust of a car accident can force the expulsion of a fetus from its mother's womb before taking its first breath. The spontaneous jarring and hammering motions of a bad wreck are known causes of a miscarry. Basically, any sudden stop or low-speed impact can set in motion a chain of events that can reject the baby.
Imagine an airbag deployment into a pregnant woman's face and torso, and you can visualize the risks. Any “catastrophic trauma” can be all she wrote for the pregnancy. Even an injury to another body part, such as a broken bone, hemorrhaging, or damage to the spleen or liver, can cause maternal death. When another vehicle operator sharing the road, or the company they work for is legally responsible for causing injuries such as this to a pregnant person, the defendants remain on the hook.
So legally, they become liable to pay reasonable compensation to the car accident plaintiff. As noted above, even a minor motoring collision can cause wreak havoc on an otherwise healthy pregnancy. And it's not just physical. It can create physiological, as well as financial problems for a woman, taxpayers, insurers, and families. For example, pregnant women tend to have far more expenses than other similarly situated auto accident victims.
Mostly, this is because of increased medical expenses and the inability for her to hold down a steady job. And even if the fetus survives, after a crash, most pregnant auto accident victims will likely require hours. And perhaps they will require months of fetal monitoring. Also, this woman or teen probably will have to see her obstetrician-gynecologist ("OBGYN") more often, as well as her will extra physical therapy appointments and possibly additional specialists.
- Pain and Suffering, and Automotive Related Pregnancy Injuries.
Until full term and delivery, there remains a risk of a post-car crash miscarry. And this is due to the increased pain and suffering many women experience after a bad street crash. She will be scared about potentially losing her unborn child, for example.
So because of this stress and uncertainty, her fetus is now at increased risk to miscarry. Sadly, no amount of victim compensation can make up for the loss or disability of a woman's baby. But money is all the mom can get during her period of healing and bereavement. Sure, maybe the responsible person has criminal responsibility. But that is a matter for the District Attorney, not a civil court proceedings judge.
Also, there is no pound of flesh in auto accident death claims. And flesh can't get a hysterically unemployable mother living expenses as she grieves, sometimes for the rest of her life! Money is what she will need to sustain herself physically, and she attempts to heal psychologically and physiologically. As noted above, pain and suffering is a significant damages component when asking an insurer, or jury for personal injury compensation.
Proving up these damages means the client and the attorney need to work hand in hand. Attorneys need to make specific evidence is gathered. Clients can help by journaling about challenges faced since losing or worrying about the baby.
- What is the plaintiff's primary goal?
Winning the most money possible under the law is always the goal in a PI case. This cannot be a vendetta or personal crusade. If so, your lawyer will likely drop your case and mail you back the file. So just how do you get the most money? It starts by calling an aggressive, intelligent car accident lawyer with the know-how and proven past at winning these cases. So it remains vital to keep and maintain a dated evidence book, along with the day in the life photographs.
Laptops, smartphones, and iPads are helpful in streamlining this process. There is a notepad feature on most of these electronic devices, as well as a camera. Use them. You should hold up a newspaper with the date displayed, for example when photographing things like bruising and lividity, and so on. Things like this can help tip the scales in your favor when in negotiations over your cases' value.
- Shady Insurers and Some Games they Play.
To recap, the insurance claims adjuster is NOT your friend. True, some of these people are beancounters who refuse to put a human face on your client. They are often cynical and even sadistic in the claims handling of unrepresented personal injury victims. Often, the insurers hide behind their high actuaries, with their shallow calculations. They try and focus on reducing the amount as much as possible.
And it's a hard pill to swallow for an injured mom to learn that there is no such thing as a "three times the meds" formula in calculating such intangibles and other non-economic losses. Hostile to your cause, they will claim that the injuries to the mother or fetus are speculative and uncertain. But a knightly attorney will already have gathered the necessary evidence and legal precedents to effectively counter the sham defenses and paid-for papers, articles, and studies proffered up by the other side.
- Pregnancy Injuries In the News.
The risks to pregnant women for death or injury while driving is statistically higher during the fall and winter months. In particular, there are more wrecks like this in the noontime hours. Much of these figures rest on the fact that moms, in general, may already have children, and these are times they are on the road more. Examples include picking the other kids from school, etc.
Above, we discussed a lot of the issues with teen moms and the unique problems responsible drivers face when sharing the roads with them. But there is also the other side of the coin. There are teen moms who are innocent of any wrongdoing; just are there are adults. There are many examples in the news of pregnant women losing unborn babies in car accidents. Recently, a woman lost her child in a Santa Ana, California hit and run.
But we don't always consider the wrongful death or severe disability of the crippled mother who just gave birth. Who will care for the newly delivered baby? God gave the child a provider, and if the father is a deadbeat (often the case with teen moms), or a minority known for not paying child support, the child ends up as a burden on society. And it's not just society. What about that innocent bundle of joy who will never know his or her blood parents?
And who sues on behalf of the infant for wrongful death? What if the unborn baby is injured inside the womb, yet is delivered with congenital disabilities? What if the mom is wounded and forced to endure an unbearable pregnancy?
Mechanisms of Fetal/Child Death, Injuries, and Car Accidents.
Scientifically, maternal death is somewhat prevented by nature's placental surroundings. The uterus and its armor-like barrier allow the unborn baby to develop to full term under normal circumstances. This armor includes amniotic fluid, the placenta, and other cavities of the mother's abdomen. In the case of minor trauma to the mother, nature has can protect a child while inside of her.
But unfortunately, nature can't always provide enough protection when facing the great risks a high-speed vehicle crash, or an SUV rollover may present to a pregnant woman. Moreover, human bodies have not evolved enough to endure the various mechanisms at play with g-forces present during the jarring and jolting of moving and stationary car accidents. The light at the end of the tunnel for the mother is that she and her unborn child may have a claim for legal compensation, as discussed at the beginning.
- How Do I Prove My Civil Fetal or Live Birth Wrongful Death Case?
First, you need to understand the two classifications of death. There is fetal death, and there is a live birth. Both are explained below. A fetus is defined as:
...an unborn offspring of a mammal, in particular an unborn human baby more than eight weeks after conception. (Source).
The wrongful death of a fetus, as contrasted with a wrongful birth, wrongful conception, or wrongful life, is determined differently in different legal jurisdictions and venues. In California State courts, you cannot sue for wrongful fetal death if its mother is no less than twenty weeks pregnant. (Source). There is also another similar action involving death after live birth. To know whether you have a lawsuit, you have to know all the rules.
Live Birth Defined: In California, a ‘‘Live Birth’’ is defined as a complete expulsion or extraction of the baby from its mother. Presently, the state of the law is such that after separation from its mother, it breathes oxygen, cries, or displays some other sign of human life.
What are the elements of a "Live [Child] Birth" In California?
- The woman was twenty weeks pregnant or more.
- There was live birth, and;
- A subsequent fetal death.
If these above elements are met, you could have the potential makings of a wrongful death of a live baby claim. Your lawyer will still need to prove that the defendant owed a duty not to harm the unborn child, that the duty was breached, and the death after birth was the end result. Examples of fetal life are:
- A heartbeat.
- Pulsation of the umbilical cord.
- Clear voluntary muscular movements, like kicking the legs, gasping for air, etc.
Of particular interest, in California, these rules apply whether or not the umbilical cord or the placenta remains bonded to the mother. (See also, California Code of Regulations, Title 17, Section 915). If that live child dies soon after that, the survivors have the making of a wrongful death claim.
- Contrast Live Birth With Fetal Death:
Unlike a live birth, ‘‘fetal death’’ means the fetus died before it was totally expelled from its mother. There is no time requirement, once there is a product of conception and does not take in a breath, have a heartbeat, or other signs of life, it is considered to be a fetal death and not live birth. (See also, California Code of Regulations, Title 17, Section 916). In California, no action can lie for the wrongful death of a fetus, because according to California, a fetus is not alive until it pretty much breathes air after expulsion from the vagina, or by C-section, for example.
The health of the mother may require her to deliver early. Afterward, if the child survives, it will stay in a neonatal intensive care unit (NICU). And these care facilities can run up medical costs of several thousand dollars per hour! Hence, these emergency hospital care visits can rapidly rack up thousands and even millions of dollars in medical expenses. If these expenses are the result of a car accident, you have the right to be compensated. Because of this, a fetus does not have the same status as a living person. Because of this, the mother cannot sue on its behalf as a guardian ad litem.
In other words, there are no recoverable damages under California's wrongful death statutes for the loss of a child, even though it was alive inside of its mother and kicking away. And it matters not that it was exhibiting the normal signs of life. But this does not mean the mother herself has not suffered significantly. So she still retains significant rights under the law. If she meets this test, she can even pursue other theories of financial compensation and recovery.
All this really means is that a civil wrongful death claim remains unavailable as an avenue to recover financial compensation for losing an unborn child.
Under California Law, the Death of a Fetus is not a Wrongful Death Claim.
Under California law, the death of a fetus is not classified as a wrongful death claim. Instead, the mother has a claim for emotional distress over the loss of her unborn child. In other words, the judge will not let you use a wrongful death jury instruction. Your money is in your general damages for things like grieving. But alas, there is still a causation problem.
The other side will hire expert witnesses who will say the cause of your miscarry was normal. Often they will produce studies saying that 10% to 20% of pregnancies terminate in miscarriage naturally, car accident or not. Because of this, proving the miscarriage was from a vehicle collision can become difficult. And that is why you hire a respectable unborn child accident trial lawyer.
- Critical Evidence in a Miscarriage-Caused-By-Accident Case.
Although the woman's husband usually has no rights here, she is not out of the woods and clear to sue anyone just yet. Plaintiff's burned is to prove it. She can't just tell the judge the accident caused her to miscarry. No. Her lawyer will need medical opinions from your non retained treating physician, and possibly statements from retained experts. The burden is on the plaintiff to prove each element of her personal injury claim, including causation.
These doctors will use documentary and treatment record evidence to see if it was more likely than not, that the motor vehicle wreck is what caused the plaintiff's miscarriage. Also, there must be evidence that is was more likely than not a live birth would have resulted if not but for the actions of the defendant driver. Also, in these cases, the further she was to the delivery date, the better chances her lawyer has in making a causal connection between the miscarry and the collision.
No matter what, an expert review is often necessary. And many private OBGYNs and other treating doctors loathe going to court. Yes, you can call them as a witness. But these treating experts may end up being angry and hostile, even though they are getting paid by the plaintiff. Because of this, your attorney will find out in advance how helpful, if at all, the plaintiff's primary care provider will be in the case. As one can see, there remain many minefields just to prove causation, no matter what the causes of action will be. And you will still need evidence to prove damages.
- What are Some Other Defenses Used By Insurance Companies To Prove Lack of Causation?
As discussed, the insurance company is not your friend. Rather than fight on your behalf, the adjuster, and the defense's insurance attorney are there to get you little, if anything. Over the years, we have compiled a list of excuses and defenses these people use to muddy up your case to steer the jury away from awarding you reasonable damages. Some Excuses The Defense Uses Are:
- The low impact nature of the crash could not have disrupted the placenta/fetus, etc., so no mechanism of injury existed to justify the outcome.
- The female is older, such as forty or over. Because of this, she probably would have miscarried regardless of the vehicle collision.
- Accident or not, it's natural for miscarriages to happen for no particular reason in a high percentage of women.
- The pregnancy was still new, and therefore it was impossible to know if the fetus was viable.
- She was unaware she was knocked up until her doctor told her after her accident.
- The woman is unmarried, separated, or in a terrible marriage, she wanted out from under.
- Since she already has kids, the loss if less than had she been left with no one.
- She would have aborted anyway because it was an unplanned pregnancy.
- This female had documented instances of prior miscarriages.
- She had a history of using abortions as a form of birth control.
A crafty and stalwart plaintiff's fetal injury attorney, such as those inherent at Ehline Law, will hire the best experts for the facts presented. And these professionals will use treating physician testimony to prove the aborted pregnancy was not part of the normal childbirth process inherent in nature. Also, your lawyer and support staff will communicate with your medical specialists and other excellent doctors, trying to make you well. And these old hands may even be able to help you find a "lien doctor," which is defined as a physician who agrees to treat you now and get paid later after the case is over.
- Compare and Contrast Fetal and Live Birth Civil Claims With Criminal Fetal Homicide.
One thing for sure is that car accidents cause many pregnant women to terminate or prematurely deliver mentally retarded, or disabled babies the parents would have aborted had they known. Some of these kids die after birth. Either way, sometimes, there was no crime present, and it was negligence. Other times, such as when a drunk semi-trucker t-bones a pregnant woman's car, then we have a chargeable crime. Currently, at least 38 states have fetal homicide laws, including California. (Source).
- California Penal Code Section 187 (a) defines murder as:
...The unlawful killing of a human being or a fetus with malice aforethought.
In these cases, the State may order the convicted defendant to pay the mother restitution. But this is usually a minimal amount, and good luck collecting from an unemployed, convicted felon. But you cannot sue an abortion doctor for killing your fetus due to the politically charged environment in the Golden State. Democrats are pro-abortion, and they have the numbers. So the laws are written this way, which can be confusing and even disappointing to a usually progressive baby killer accident trial lawyer.
- Contrast Fetal Death With Fetal Endangerment Rights.
Most human rights organizations don't normally respect the rights of the unborn. For example, the World Health Organization (WHO) and Human Rights Watch prioritize the mother's right not to be inconvenienced over the fetus's right to be delivered from the uterus and grow up. However, at least under European law, the rights of the fetus generally carry to and from the mother. So this means the mother can stand in subrogation to the child and still have rights. Some would say that California should take an approach like this.
- What About the Father's Rights in a Miscarry Case.
Many experts argue that it violates equal protection not to allow the survivors like the father to sue for fetal death, the same as he would be able to for wrongful live birth. After all, it was the father's seed that helped make that baby. For now, the father has far fewer rights than the mother, unless somehow, he can argue that he was emotionally distressed because he perceived the injuries to the mother as they occurred during the miscarriage. Again, these are all issues for a fetal injury lawyer to research and develop as viable theories of legal recovery.
Most of all, claims adjusters don't want victims to know the fair value of your insurance claim. Their job is to prevent the plaintiff from even considering the different potential losses for which a claim can be made. And this is why it remains vital for a pregnant woman to hire the right lawyer after an automotive collision. Below, we will discuss the many rights a woman has and how she can get money for your injuries, or the death of her child.
Can I Sue, Who Do I Sue, and When Must I Sue For "Wrongful Birth" When My Newly Born Child Is Deformed or Disabled From the Car Accident?
Yes, you can probably sue someone, like your doctor, maybe. But wrongful birth and wrongful life lawsuits are against doctors for misdiagnosing the baby's disability or disease. The rules of when you can sue for wrongful birth are discussed below.
- A parent can sue the person who caused the car in wrongful death if the child survives and then later dies.
- But the parents cannot sue the liable party for wrongful birth.
- However, the mother will be able to argue she is entitled to reasonable expenses for raising a child injured or disabled from the accident.
- A parent has no duty to abort a defective child, after all.
Cases of Wrongful Life and Wrongful Birth Are Only Available Against Health Care Providers, Not the Car Accident Defendant?
True. As noted above, you still need to prove all the elements of negligence first. And parents cannot maintain such claims against the person who caused the accident. Nope. Their claims would be against the doctor and the hospital for either wrongful life or wrongful birth. Let's say the child lives but has a physical or physiological disability. The mother and father may have evidence the deformities and problems arose from the car accident. Still, the doctor failed to tell them or misdiagnosed the severity of injuries to the fetus. Here, the medical attendant knew there was a risk of harm to the fetus but made a mistake.
The opposite of a wrongful death case, the parents, would still need to prove they would have terminated the pregnancy, had they known there would be all these problems. Next, because of delivering the baby, the parents are legally on the hook to the child until it reaches 18, and they are not happy. So yes, there is an action for both parents under the wrongful birth law, and when the child grows up, it may be able to sue for wrongful life.
But again, these are laws in California against a medical practitioner. Under the Wrongful Life statute (See also CACI 513Wrongful Life—Essential Factual Elements), the child would have to show the doctor didn't tell the parents about a genetic defect caused by the car accident and they would have aborted otherwise.
But under CACI 512, the parents could sue the doctor for failing to inform them of the risks of having a child born disabled as a result of fetal injuries.
To establish this claim, [name of plaintiff] must prove all of the following:
[1. That [name of defendant] negligently failed to [diagnose/ [or] warn [name of plaintiff of] the risk that [name of child] would be born with a [genetic impairment/disability];] [1. [or] [1. That name of defendant negligently failed to [perform appropriate tests/advise name of plaintiff] of tests] that would more likely than not have disclosed the risk that [name of child] would be born with a...disability..." (Source).
These above jury instructions are additional methods of recovery available to the parents when the original car accident defendant has little to no assets to pay for the mishap.
- What is the Wrongful Birth/Life Statute of Limitations?
In California, along with other administrative requirements, all birth injury lawsuits against medical personnel must be filed within three years from the time of the injury, unless an exception extending the time to sue applies. One exception has to do with foreign objects left behind in the body, such as a sponge. Another exception trigger has to do with the date of discovery of the injury.
Sometimes the parents or child don't know there is a defect at all, or that the defect could have been diagnosed prior to the birth. In these cases, the three-year rule does not start running until the date of discovery. There may be other reasons you could not have filed, so speaking to a lawyer right away can help clear things up.
- What is the Infant Wrongful Death Statute?
Any cases involving the wrongful death of an infant must be filed within two years of the death of the baby. Again, there are exceptions, but you should talk to a lawyer before moving forward in one of these delicate matters. (Source).
What is the Delayed Discovery Rule?
The delayed discovery rule was created as a way to protect negligence claims from the statute of limitations, which could have expired before the plaintiff knowing that he or she had a legal claim. This legal set of guidelines postpones the running of the statutes of limitations. But it only remains tolled during the period the plaintiff did not know they had a claim.
This period could also be due to the implementation of reasonable diligence, which would not have discovered the injuries could lead to his or her action against the defendant or perpetrator. This rule can apply in sexual abuse cases until the victim sees the connection between their injuries and the sexual abuse that occurred.
An example of the delayed discovery rule legal definition:
Typically, a ground of legal action accrues upon the event from the final component crucial to the cause of action. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 826.) The doctrine is based upon fairness. And this is why we have the delayed discovery rule.
This means the statute of limitations starts to run not upon injury, only when the plaintiff either discovers his or her injury or could have seen his or her accidental injury through the utilization of reasonable diligence. (Smith v. Dunham, 2008 Cal. App. Unpub. LEXIS 2823 (California Unpublished Opinions 2008).
Generally, minors and prisoners can toll the statute. So until they can represent themselves freely the statute remains tolled. For a more detailed explanation, contact our attorneys at (213) 596-9642.
Women have good reason to be concerned about driving while pregnant. The studies are no secret among health experts. Motoring collisions are the number one cause of trauma-related fetal death. But at least one expert says, “The message here is not to stop driving,” but instead, “The message is to start driving more carefully.” (Source, LA Times).
To recap, the mother and child can suffer minor to severe injuries in a car accident. The severity and extent of an adult or fetal car accident personal injury largely depends on the forces and violence involved in the collision. But even a minor collision can harm a fetus. So even a minor rear-end accident for an average person could kill an unborn child. Noteworthy here is that the mother may only suffer whiplash.
But she could also lose her baby. Because of this, the pain and suffering element of her settlement would look dramatically different than for a male who didn't even bother going to the doctor after his accident.
Listed Below Are Many Injuries to Women and The Unborn Commonly Caused By Car Accidents:
- Internal Bleeding - Hemorrhaging, also called internal bleeding, is a huge problem for pregnant women involved in car accidents. At first, there may be few signs externally in the woman. (Source). And this is another reason why it remains vital to get an ambulance to the hospital. It may take days or hours to determine if her organs or placenta are being damaged internally due to blood spilling into the abdomen, etc. Also, complications of internal bleeding may lead to shock, lividity, tissue death, and even wrongful death of the mother, not just her fetus.
- Preeclampsia - Also known as Toxemia, is a high-risk condition in pregnant women that can be triggered by stress. It is labeled high-risk because it requires constant medical monitoring and attention. It is characterized by swollen feet and high blood pressure. Yes, the trauma caused during a car crash can lead to high-risk pregnancies, such as preeclampsia. Sadly, even without a miscarriage, the baby may suffer stunted growth. And the mother may suffer painful associated preterm labor complications and issues of medical concern with her placenta. And in cases such as this, hospital bills and travel time can break a single mother and even entire families.
- Still-Birth - Stillbirth is defined as fetal death that happens between 20 to 28 weeks of pregnancy. But other definitions exist depending on the state's laws. But no matter the medical or legal description, the end result is a baby delivered with no signs of life. Sometimes a slap on the butt is enough to force life into the baby. Other times, it is dead on arrival ("D.O.A."). In some cultures, the man will blame the woman for the death or congenital disability of the dead or defective child and leave her. In Latin women, birth defects are more common than in Caucasians or Asians. Stillbirth is a very traumatic experience for the birth mother, and culturally; it can be made worse. As discussed, in addition to grieving, the guilty feeling woman will often blame herself. She may even become suicidal. It is vital not to settle a personal injury insurance claim until you know the real condition of the fetus. What if she decides early on, and the child is delivered as a stillborn? How will the mother react after she already settled the case? A general release of all claims in exchange for money, typically lets the defendant off the hook forever, unless an exception applies. And this is another reason why consulting and retaining a proper lawyer is the most critical thing to do after seeing a doctor. A properly trained lawyer understands a mother's pain, and psychological damages constitute a significant component of the client's case.
- Premature Birth — An untimely birth is a birth occurring more than three weeks before the baby's expected delivery date, typically before the 37th week of pregnancy. Premature babies, or "preemies," often have complicated medical problems including but not limited to diseases like necrotizing enterocolitis. Although premature birth had risen four straight years, and affected one in ten U.S. birth as of 2018, this does not mean the crash did not cause the injury. As noted above, even slight rear-ender car accident can cause a miscarry, or preemie baby. The key to the mother is proper medicine, treatment, exercise, and nutrition to try and mitigate the risks of early delivery. The idea here is to help the baby survive without suffering a permanent, or crippling disability. Don't underestimate the stress the mother must endure, either. This experience is heartwrenching for most females.
- Placental Abruption - A placenta is the vascular organ inside the uterus acts as an intake for oxygen, and nutrients, while simultaneously removing waste from the baby fetus. When the placenta detaches from the uterine wall during a car accident, for example, it is said to be an abruption. Because oxygen and nutrients to the fetus are cut off or disrupted, the fetus is basically starving and suffocating inside the mom. Because of this, partial abruptions can also occur as a way for nature to try and save a life. To recap, placental abruption is when the placenta separates early from the uterus, in other words, the mother's placenta separates from the fetus prior to childbirth. This serious condition occurs most often, starting around the 25th week of pregnancy. The mother may notice symptoms like vaginal bleeding, pain in her lower abdomen, and even deathly low blood pressure right off the bat. There can also be complications. The forces involved in shaking or jolting actions like a car accident can cause trauma to the lower abdomen, setting off a placental abruption: Moreover, according to at least one study by the American Journal of Epidemiology, 119 of every 1000 placental abruption patient lost their child during preterm delivery. This is a remarkable number, considering the mortality rate for other classifications of live birth deaths remained around 8.2 dead babies per of every 1000 deliveries. And as discussed, placental disruption is a primary reason for premature child delivery. But sometimes the placental separation is not total. Because of this, a pregnancy may be able to continue after a partial abruption. But this is classified as a high-risk pregnancy. As noted above, any type of pregnancy that requires constant monitoring is considered "high-risk." As placenta accident attorneys well know, and as we have noted, the claims adjuster and defense attorneys are already prepared with a canned defense. Because of this, it remains crucial to stay off of social media and remain silent until you speak with a lawyer.
- Uterine Injury - Uterine perforation is among the more common complications attendant with intrauterine procedures. The death rate for the unborn is practically 100% in uterine rupture accidents. Moreover, it appears the enlarged uterus has some effect on surrounding viscera, like the intestines and bladder, so it also places the mother's 10% mortality rate in play if her uterus is ruptured. Also, a perforation can be triggered during the effects of a high or low-speed auto accident. Immediately after, this can cause a mother to go into labor! And once again, this is why a pregnant mother needs to take an ambulance to the hospital and call a uterine injury attorney afterward.
Moreover, your attorney will need to know if the mother has internal bleeding that threatens the life of her or the unborn child. Also, seeing a doctor right away creates documentary evidence of the car accident and its connection to the ruptured placenta. This is the stuff of a winning liability phase of your unlimited jurisdiction civil claim.
- Fetal Trauma - There are many additional types of trauma to both the baby and the mother, discussed here. Although studies show that between 18 to 20 weeks, a baby can start feeling others poking, prodding, and touching mommy's belly, sometimes things like a seatbelt can strange or traumatize the fetus. As noted above, even a simple fender bender is enough to cause a high-risk pregnancy from either direct or indirect trauma. Moreover, fetal trauma is a known cause of severe birth defects and other complications for the mother during pregnancy. Some examples of trauma a fetus may face at birth include oxygen deprivation, fractures, bruising and crush injuries, Bells’ palsy, brachial plexus injury, Caput Succedaneum, Subconjunctival hemorrhage, and Cephalohematoma. And again, it is also the mother, not just the child, remaining at risk for death and serious complications. Medical care is absolutely essential to ease the suffering of both the mother and the unborn.
- Birth Defects - As discussed above, undiagnosed birth defects can lead to wrongful birth or wrongful life lawsuits against a hospital or physician for misdiagnosing or failure to diagnose. Because of this, the baby may develop poorly when compared to a healthy child. Most of all, a child with congenital disabilities will require expensive lifetime care for treatments likes feeding therapy to cure eating disorders. Or the child may need physical therapy to help with athleticism and balance, for example. Sometimes the parents may need tutors and experts to administer occupational therapy to the child. Obviously, many birth defects include speech disorders. So a speech therapy may also be part of the child's rehabilitation process. Due to the stunning array of challenges presented by birth defects, the woman will require long-term medical care. Assuming the child survives, it may need care for its entire life. Assuming the child is a cripple, certain modifications like a wheelchair ramp and handicapped ramp, and special van may be required. Sometimes a home modification will be necessary, such as a wheelchair ramp and wheelchair stairlift. And in addition to these tangible financial losses, the parents will have extensive losses that are not so easy to value. For example, the child may not be able to have normal relationships or even play sports. Obviously, this can stifle self-esteem and socialization that is so important to kids. Even things like holding down a regular job, or just having a conversation may be a permanent condition. Parenting can become trained due to stress. And suicide is more common for parents in these situations. All of these are compensable losses if she can prove it. The defense will use the woman's drug or tobacco use as a defense that the child would have been defective anyways. And this is why a great birth defect attorney and medical expert testimony remains crucial to winning your personal injury case.
What Are Some Other Examples of High-Risk Pregnancies?
Let's recap. Women who smoke and do illicit drugs (more common in teens) increase their chances of a complicated, high-risk pregnancy. But there are many risks that can increase the chances of harm to a child in the womb. For example, some women are already diabetic and overweight with high blood pressure. Children born to obese ladies are at a 15% increased risk for heart disease, for example.
Or they may have an STD like Herpes or HIV/AIDS. Also, a woman pregnant with triplets, or twins, for example, remains at risk for preterm birth complications. As noted above, teens under 18 are often in the high-risk pregnancy category, especially in Los Angeles, with many dangers on the streets, home, school, and at work. But ladies over 35 start to head into the Downs Syndrome risk category. And although amniocentesis can test for such defects, the mother remains at an approximately 1% risk for preterm labor, miscarriage, or infection.
Because these are such stressful situations for the mother, high-risk pregnancies can lead to preemies and much larger medical expenses than normal pregnancies. For example, it's expensive to conduct extraordinary ultrasound scans regularly. It causes the mother a lot of inconveniences making trips back and forth to work. More than one wrongful termination due to pregnancy discrimination has been filed over fetal monitoring trips to the hospital and requests for more maternity leave and vacation pay. Some employers don't like it that some employees get placed on bed rest after a car crash.
The upside to extra time off work is that the woman can better heal, and it's a cost attributable to wreck. But again, most employers are not thrilled about employees using PTO and their maternity leave for such lengthy and unplanned periods. Also, some of the pharmaceuticals given to control mom's blood pressure and stress, from traveling all the time, for example, could adversely affect the baby and the mother as well. RECAP: The pregnancy could be designated “high risk.” Because of this, extra monitoring, medical care along with additional expenses, all tend to show her additional pain, discomfort, and suffering settlement.
For example, she will probably be seen in the emergency room by an obstetrician. There, she will likely undergo additional ultrasounds and other manual and electronic testing to check on fetal health. Also, she might need follow-up care or visits to other medical specialists. Most of all, the victim remains entitled to additional money for any provable, added stress, and worry.
And the negligent vehicle operator causing the calamity is legally obliged to compensate the pregnant woman for all of these extra expenses. As discussed at the beginning, due to all these added stressful elements, a mother's lawsuit against the person causing the car accident carries significantly more pain and suffering compensation than an ordinary collision. Last, if your child’s birth defects are the result of a car accident, the negligent driver has a legal obligation to pay for all these costs.
Your child is also entitled to compensation for his or her pain and suffering, which can be substantial. Feel free to contact one of our high-risk pregnancy auto collision attorneys at (213) 596-9642 to learn more about your rights to compensable damages.
- Not Having Insurance or Buckling Up - When Does the Mother's Vehicle Accident Case Lose Too Much Value to Pursue?
Under Prop 213, California punishes drivers for not having auto insurance prior to the collision. So we generally will not sign up a Prop 213 case unless there are significant injuries, or death, for example. (See California Prop 213). The rule is that no general damages are available unless this law had been complied with. But, as noted above, not wearing a seat belt could also reduce any damage award that the suing party ultimately receives.
Caveat: Some frightened moms will sneak and try and buy insurance after the accident so they can lie and say they were covered. Don't do it. And this is probably insurance fraud.
In a nutshell, the seatbelt defense allows the person who caused the accident to pay less money by proving you made your injuries worse. Not wearing your seatbelt is all it takes to invoke this defense. Violating Vehicle Code Section 27315 creates what the defense bar references as the "Seatbelt Defense," which can make the plaintiff comparatively negligent and reduce her overall damages for medical bills, as well as pain and suffering. Contrast this with a Pro 213 case, which bars recovery of general damages. In these cases, the plaintiff could end up with less for hospital bills and lost wages, not just for pain and suffering. Below we have included quotes of the most relevant California Vehicle Code Section snippets on this topic.
ARTICLE 3. Safety Belts and Inflatable Restraint Systems [27302 - 27319](Heading of Article 3 amended by Stats. 1999, Ch. 449, Sec. 1.) (a) The Legislature finds that a mandatory seatbelt law will contribute to reducing highway deaths and injuries by encouraging greater usage of existing manual seatbelts, that automatic crash protection systems that require no action by vehicle occupants offer the best hope of reducing deaths and injuries, and that encouraging the use of manual safety belts is only a partial remedy for addressing this major cause of death and injury. The Legislature declares that the enactment of this section is intended to be compatible with support for federal motor vehicle safety standards requiring automatic crash protection systems and should not be used in any manner to rescind federal requirements for installation of automatic restraints in new cars. (b) This section shall be known and may be cited as the Motor Vehicle Safety Act. (c) (1) As used in this section, “motor vehicle” means a passenger vehicle, a motortruck, or a truck tractor, but does not include a motorcycle. (2) For purposes of this section, a “motor vehicle” also means a farm labor vehicle, regardless of the date of certification under Section 31401. (d) (1) A person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt.(2) For purposes of this section the phrase, “properly restrained by a safety belt” means that the lower (lap) portion of the belt crosses the hips or upper thighs of the occupant and the upper (shoulder) portion of the belt, if present, crosses the chest in front of the occupant. (e) A person 16 years of age or over shall not be a passenger in a motor vehicle on a highway unless that person is properly restrained by a safety belt . . ."
But “The seat belt defense does not depend on a Vehicle Code violation nor is it eviscerated by a Vehicle Code exemption from the requirement to wear seat belts.” (Lara v. Nevitt (2004) 123 Cal.App.4th at p. 461 fn. 3). (See also California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.71 2, Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.05 (Matthew Bender) 8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action, § 82.10 (Matthew Bender), 2 California Civil Practice: Torts § 25:26 (Thomson Reuters West) 713–719). So, unlike failure to have auto insurance, not wearing a seatbelt is more of a question of whether or not the plaintiff would have been less injured in a wreck. And this remains true, even if the plaintiff's doctor said a seatbelt would do her more harm than good. Most of all, the seatbelt law is quasi-criminal, to fine the lawbreaker using a ticket or notice to appear in court.
Often, the detaining officer will politely remind the pregnant woman to buckle up and let her off with a warning. Other times, the officer will issue her a citation. Civilly, the courts don't depend on a Vehicle Code violation, that is irrelevant. What usually matters is whether seatbelts were provided, and not used. Remember, some older vehicles have no restraints at all due to a classic car grandfather's clause in the Vehicle Code. But this is very rare and not worthy of discussing.
So the question before the claims adjuster and the courts here is: "since seatbelts were provided, and there was a wreck, did not wearing the restraint make the injuries worse?" If so, the defendant can use California's so-called "seatbelt defense" to seek a reduction in both medical, or special damages. Naturally, the defendant will hammer the plaintiff's general damages. The door has been opened for the jury to reduce the plaintiff's recovery for things like treatment bills, pain, and suffering using this comparative fault argument.
California's Pure Comparative fault laws are a means of reducing the damages award based upon who was most at fault. If experts can prove a seatbelt would have been more effective at preventing additional harm, then the plaintiff's damages award can be reduced. But this defense does not exist in every state.
To recap, failure to maintain valid proof of financial responsibility means the plaintiff cannot seek pain and suffering damages. Failure to wear a seatbelt, unless an exception applies, means the plaintiff's total bodily injury damages can be reduced based upon the plaintiff's degree of negligence for not wearing a seatbelt - EVEN IF THE DEFENDANT is 100% at fault for the accident itself.
So, for example:
- The defendant will still have to pay 100% of the property damage to the vehicle.
- But any injuries caused by the plaintiff's abdomen, torso, and limbs striking the vehicle's interior, miscarrying, or being ejected and killed, for example, would be reduced. Moreover, the award's reduction would be based upon what the injuries would have been but for the plaintiff's failure to wear a restraining device.
What If Wearing A Safety Belt Would Harm the Mother Medically?
Now, there are times when a medical doctor finds a traditional seatbelt could actually do a pregnant woman more harm than good. Below, we cover alternative use restraining devices for pregnant women and how to wear a belt properly. None the less, under subdivision (g) of CVC Section 23175, people in a car with a "physically disabling condition or medical condition that would prevent appropriate restraint in a safety belt" are exempt from wearing a safety belt while driving. But the plaintiff must prove to the court that a duly certified and licensed physician, surgeon, or chiropractor had medically reasonable reasons and gives as an explanation as to why the condition's nature prevented the mother buckling up.
Because of this, one of the first things a lawyer will ask is whether or not the mother maintained insurance on the car. Next, the lawyer will ask whether she was wearing her seatbelt before the wreck.
Is Wearing a Seatbelt Even Safe For Pregnant Women?
There is an old wives' tale out there that pregnant women shouldn't wear seatbelts to protect the unborn child in the abdomen. Many women think that the seatbelt could kill the fetus if there is a crash. Other ladies just feel the seatbelt is uncomfortable or "strangling." But many studies have found that if the seatbelt is worn below the abdomen, the child has an increased, not a decreased survival rate.
Most experts agree that seat-belts are the single most effective means of saving lives and reducing motor vehicle-related injuries. Most prestigious studies reveal the mother is at least three times safer while driving when she is wearing a seatbelt. Therefore, proper seat belt use remains key in preventing injuries to the expectant mother and her fetus. Still, some women don't wear a seatbelt, or if they do, they wear it across their belly, the wrong way!
In that case, the fetus is at an increased risk, and so is its mom. Assuming no seatbelt is worn, depending upon the type of collision, the mother can be violently ejected from her car through a side window or the front windshield. Also, assuming the seatback does not fail, not wearing a seatbelt places the mom and passengers at risk for striking hard objects inside the vehicle. So statistically, there is an increased risk of serious injury and death to anyone not wearing a seatbelt. But remember, if the woman is pregnant, she must wear a special safety belt (discussed below), or know how to wear the standard belt the vehicle is already equipped with correctly.
- Related Issue: What About Vehicle Airbags and Pregnant Women?
Another myth persists among many pregnant women that they need to disable their driver's side airbag so that it won't explode on the baby after a car accident. But doctors recommend that pregnant women always leave airbags turned on. (Source). To recap, seat belts and airbags work in tandem to afford the best level of protection for the unborn child and its mother.
- Can Seatbelt Technolgy Reduce Seatbelt Related Abortions and Miscarries?
Based on many studies, technology can reduce the risks of a miscarry during the violent conditions present in a vehicle collision. Because of the dangers of wearing a seatbelt nestled below her fetus, the pregnant woman still risks severe injury or harm to her developing fetus during a crash. Because of this, at least one enterprising entrepreneur has announced the creation of the "Pregnancy Seat Belt Positioner." Also, known as the "Tummy Shield," personal injury attorneys like me, and even physicians recommend approved devices such as this.
This is because the pressure of the belt is removed from the lower abdomen down to her thighs if there is a crash. This makes it far safer for the fetus inside the womb during the shocking events of a collision. So take some time to research this product and let us know your thoughts. As an aside, there are also unique safety belt extensions for pregnant women to wear when traveling by aircraft.
- The safest type of seat belt to wear is probably a pregnancy belt positioner or a bump belt, for example.
- The next safest restraint system comes equipped with most modern cars, which is a lap and shoulder belt combination ("lap-belt").
- The lap belt should be worn tucked under the belly, touching the top of the thighs. Next, it should be stretched down snug across the hips.
- The accompanying shoulder belt must also fit snugly across the center of her shoulder and chest areas without resting over the belly.
- Pregnant women must never rest the belt directly over the abdomen.
- Don't try and sit on top of the shoulder belt with your back, or place it under your arm either. This is risky and could increase car accident-related injuries.
- As the pregnancy develops, consider adjusting the seat positioning, so the belly remains as far from the airbag as possible while still driving safely.
- A safe rule of thumb is to keep the breast bone 10 inches or more away from the vehicle's dashboard or steering wheel. (Source).
Researchers pulled the records of over a half million women from 2006 to 2011 including the number of car accidents. For pregnant women, the risk increases significantly. It is also a leading case of fetal deaths. Chances are unusually high in the fall and winter, as well as during the afternoon.
How Do You Make Your Ride Safer For Pregnant Travels?
There is no silver bullet, but there are several things an expecting mother or family can do to lower the risk of a crash. It could mean the future of your whole family.
- Combine Trips into One: Combine several separate trips into one. This allows a lower risk of a crash due to a smaller number of transits.
- Consider Turning Over the Wheel: Hand over the wheel to someone that is ready, especially if you are tired.
- Change for the Circumstances: Your body is different than it was before you were pregnant. You're likely a bit bulkier and need some changes in how you position your seat. Take more stops as needed, and don't rush. You'll get there.
- Seek Treatment in Any Crash: Any crash or trauma is a big one for the baby. Make sure that you seek immediate treatment for any issues or collisions.
What Are Some Other Logical Driving Tips for Driving While Pregnant?
- Avoid slamming on the brakes - Although the womb offers a significant level of protection for the baby inside, any type of sudden impact, or intense force can kill the unborn. Any extreme forces, such as those caused by someone slamming on their brakes, can cause a vehicle occupant's placenta to separate from her uterus, among other tragedies.
Wrongful death claims are a creature of statute in California. And they are to prevent people from taking revenge on each other, and blood feuds. Although newly born babies who soon die are not specifically mentioned as potential decedents in Code of Civil Procedure 377.60 – 377.62, courts have held time and time again; their survivors can sue in wrongful death.
All that is required is that the baby is delivered alive. (Justus v. Atchison, 19 Cal. 3d 566, 1977.) So to recap, parents cannot maintain a wrongful death claim for a miscarriage or a stillborn child. If, however, the child was delivered alive, the parents can continue a wrongful death claim if the child subsequently dies from injuries sustained in a car accident.
Has Headway Been Made to Allow Suits For the Death of Unborn Child?
Federal law has declared the fetus and embryo to be human life under specific criminal statutes. The Unborn Victims of Violence Act of 2004 (Public Law 108-212) was brought about due to a California murder case, where Scott Peterson murdered his wife Laci, and her fetus. Peterson was successfully prosecuted and is on death row for their double murder. But California already has a similar law, and it does not allow people to sue for the death of a fetus.
Many opponents of such a move claim that vindictive fathers might sue the grieving mom, and it could open up a can of worms for lawsuits against abortion providers. You and your fetus deserve better from California. But for now, it doesn't look good for the rights of fetuses and embryos in civil suits for wrongful death in California.
What Are Some Additional Steps to Take After a Car Accident While Pregnant?
Besides the normal steps like calling 9-1-1 and other suggestions here, it remains difficult to know what to do without a lawyer helping after a car accident. Sometimes the mother will be in a state of shock and highly emotional. From a medical standpoint, the female needs to follow her doctor’s advice, see the proper health care providers and attend physical therapy. If she is a high-risk pregnancy, she will be making a lot of trips back and forth to see specialists.
Any gaps in treatment, or failures to follow instructions allows the claims adjuster to argue she is faking it. Often the adjuster will say the injuries happened from something else, etc.. Also, the shady insurance company with its obfuscatory tactics can argue that you exacerbated your injuries or that you were not as hurt as you claimed. Avoiding paper tigers and red herring defenses require the client to protect herself and her child by listening to her attorney.
The Importance of Note Taking and Journaling For You and Your Future Child.
It's true. Journaling isn't just great for emotional healing. Documenting how the accident has affected you and the baby is a sure way to help prove pain and suffering damages. A pregnant woman's suffering, and worrying about her high-risk pregnancy, and pain from her injuries can drastically escalate her anguish. Journals and day in the life videos can help establish these crucial intangible elements of an injury case.
Must the Baby Be Born Before to Settling The Driving While Pregnant Collision?
Yes! Don't be a fool. The pregnant mother has two years from the date of the injury, and she is somewhere in between one day and nine months at the time of the collision. Sure, everyone wants to get paid right away. But without evidence of damages and serious injuries, a hero case can become a zero case, lickety-split. And in the age of COVID-19, and having a hard time paying bills, this makes sense.
- What Does My Lawyer Need Before Setting My Injury Case?
Without a lawyer having all medical bills, delivery records, and expert workups, the claims adjuster, jury and judge will never have all the evidence. Sure, in some situations, the treating OBGYN or another physician may believe with intrepidity that the pregnancy will not be affected by the motor vehicle accident. But then again, it may be legal malpractice to settle that case without getting a second opinion.
But even then, after settling, developmental delays in the pregnancy, or some other pregnancy complication could present critical medical issues. After all, x-rays are not supposed to be taken of the womb, and sometimes ultrasound and electronic monitoring don't catch potential bone chards or other hidden hematomas within the mother's delicate womb. It would be a grave mistake to settle a case such as this without knowing the full extent of the losses your baby has suffered.
There is no way your doctor can accurately predict if some other problem will or will not cause delivery complications, besides the normal every day delivery problems. For example, what if it turns out the mother had an undiagnosed bulging disc injury. Upon ovulation, the discs in her spine could shift, killing her or maiming her for life.
So most experienced personal injury lawyers will hold off on suggesting a settlement until after delivery. Greedy attorneys will sometimes take the settlement anyway, believing that the woman's claim dies with her. So get the money now, or never. If she dies, only immediate family can sue in wrongful death, so the lawyer could be left holding the bag.
The upside to these cases is that delaying settlement usually is not an issue since most pregnancies are only nine months, and the plaintiff has typically two years to sue.
What Are Some State and Federal Benefits Available For Full Time Mom's Caring for a Disabled Child At Home?
At Ehline Law, we realize that a woman with a child disabled from a car accident will face challenges caring for the child and paying bills. Because of this, we have provided the below information to help mothers waiting for their cases to settle. There are three programs we can help you apply for once you are our client as follows:
- In-Home Support Services.
- Social Security SSI Survivors Benefits.
- California State Disability Insurance and Paid Family Leave.
In-Home Support Services ("IHSS").
If you have a special needs or disabled child, the mother can be a stay at home mom and get paid to rear her child. The program is known as in Home Support Services. Since the government is not concerned with how wealthy you are or aren't, a couple in Beverly Hills with a special needs child qualifies. (Source). IHSS gets financing from federal, state, and county funds. However, depending on what your countable income is, the caretaker may need to pay for a portion of the cost of services. And this rules is known as the share of cost rule. But, even if you work, sometimes if you or your child are disabled, you may also qualify for Medi-Cal’s Working Disabled Program ("WDP"). (Read more here).
What if Mom Died During Delivery, or Is Disabled From Work?
Normally, a surviving infant is eligible to receive at least half of the parent's "full retirement or disability benefit." So yes, a child can even receive survivors' benefits if their mother died during conception. In that case, the surviving caretaker remains eligible to receive up to 75% of the deceased parent's primary Social Security benefit on behalf of the child's care. (Source). In some cases, these benefits can inure to the benefit of the disabled offspring. And it may do so well into his or her adulthood.
Also, once the offspring gets married, all bets are usually off unless an exception applies. However, kids of a living Social Security beneficiary can only collect up to half of the living parent's primary insurance amount as if the parent had achieved full retirement age. And if the parent dies, survivor benefits for children can be as high as 75% of the deceased parent's monthly benefit. Also, disabled children in low-income households may even qualify for Supplemental Security Income ("SSI").
Assuming the benefits were not curtailed, once beneficiaries turn 18, the Social Security Administration will review whether the offspring qualifies for SSI under some other adult disability program.
California Disability Insurance and Paid Family Leave ("PFL").
California also offers its own 8-week program for its citizens and even non-citizens. Citizenship and immigration status does not affect eligibility for this California program's offering. But to become eligible for California PFL benefits, you must:
- Already be a caregiver for an ill or disabled family member.
- Already have paid into California's State Disability Insurance in the last 5 to 18 months.
- And have not already received the maximum allowance of 8 weeks of PFL in the past 12 months. Fun fact: You can break up your eight weeks of leave. You don’t have to take it all at once!
To find out more eligibility requirements, just click the links. (Source). And here are some other tips for money and programs for moms injured while driving pregnant. Again, once you are our client, we can help guide you through these programs to help ease the stress and worry of what lies ahead.
- Were You in a Driving While Pregnant Motor Vehicle Accident?
Driving while pregnant cases are by no means easy cases to navigate, even for an expert auto accident lawyer. Background, demeanor, race, age, and other medical conditions all play a role in the viability of a pregnancy and driving lawsuit for personal injury and wrongful death. Moreover, other legal issues regarding when life begins can hamper cases involving the death of a fetus.
For example, the mother and father can only sue the defendant for wrongful death if there is a live birth. Although the United States government passed a federal law recognizing embryos and fetuses, California will probably never allow a mother to sue for the wrongful death of a fetus. Also, wrongful birth claims are only valid as against a misdiagnosing or negligent doctor or physician.
Next, a woman's surviving child can only sue the negligent care providers for wrongful life. Next, although a woman cannot sue for the wrongful death of a baby delivered with no signs of life, she does have a tremendous personal injury pain and suffering claim. But her general damages claim is only solid if she complied with California's motor vehicle financial responsibility laws.
Also, there may be other defendants with additional money, such as the defendant's employers, assuming the defendant was in the course and scope of employment when the defendant crashed into the woman's car. Also, we learned that negotiating a settlement solo with a claims adjustor is suicide for any injury claim. No matter what, driving while pregnant cases are among the most complex cases, there are to navigate.
Because of this, Ehline Law Firm Personal Injury Attorneys, APLC has made its experienced, veteran attorneys available to help driving while pregnant victims. Women and families are entitled to know their rights, and steps to take to save their baby. But don’t delay. Contact a lawyer to fight for you now. The single most important thing a pregnant woman or miscarriage car accident victim can take is hiring the right lawyer without delay.
Ehline Law has received numerous client and peer reviews and awards, including the Super Lawyers Rising Star Award. With over $100 million recovered in personal injury cases, we make it happen. Also, our Los Angeles based law firm has personal injury offices in Torrance, California, San Diego, Carlsbad, Riverside, Marina del Rey, Redondo Beach, Rancho Palos Verdes, San Francisco, and San Bernardino. We have helped expecting mothers, motor vehicle accident victims, and others all across the Golden State. And we have meeting places pretty much everywhere. Also, we will come directly to you.
To recap, we know that nothing can take away the suffering and pain associated with losing a loved one or a pregnancy-related injury. However, filing a miscarriage or wrongful death claim may just help mothers, babies and their families recover some form of financial compensation for their troubles. Now you can let our experienced pregnancy injury lawyers handle the legal aspects of your case so you can focus on healing and getting the care you need. Call Ehline Law now at (213) 596-9642.