A 37-year-old California woman presented to her obstetrician multiple times during the third trimester with complaints of nausea, vomiting, headaches, and heartburn. At about 36 weeks’ gestation, she went to the emergency room with worsening symptoms and complaints of upper abdominal pain. The on-call obstetrician was contacted by phone and informed of the woman’s symptoms and a normal fetal heart rate recording was noted. The physician did not come in to examine the patient and she was discharged with no order for any follow-up testing or monitoring. One week later a fetal demise was found and the patient was diagnosed with acute fatty liver disease of pregnancy.
The woman sued the obstetricians and medical center alleging negligence in failing to heed her complaints, which were not normal in that late in gestation, and failure to obtain any testing or follow-up care that would have diagnosed the condition in a timely manner when labor could have been induced and the fetus born alive. She claimed she suffered from emotional distress as a result of the loss of her baby. After this, the woman went on to give birth to another healthy child.
The medical center and the on-call obstetrician settled the case prior to trial. The primary obstetrician argued that the patient’s symptoms were common in pregnancy and that it was not below the standard to not diagnose a very rare liver disease. His expert opined that the fetus probably died from a nuchal cord accident or an idiopathic cause, but there was no way to tell if the fetus died as a direct result of the fatty liver disease, although he admitted the death did occur at the same time that the woman’s liver function was abnormal.
The jury found in favor of the plaintiff for $160,090.82.
In California and in most other jurisdictions, the loss of a fetus does not give rise to a wrongful death claim. In the absence of a live birth, the fetus lacks standing to make a claim for damages for injury or death. The woman who was carrying the fetus, however, can usually seek personal injury damages that she suffered in the loss of the fetus.
In this case, the jury was instructed that the case was not a wrongful death but a personal injury action for the woman. She claimed emotional distress as her damages in the loss of her baby, and in accordance with California’s cap on non-economic pain and suffering damages, sought to recover $250,000. She also sought recovery of $80,090.82 in actual economic damage for past medical expenses.