Can You File a Wrongful Death Claim for an Unborn Child in PA?

Yes, in many cases. In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), the Supreme Court of Pennsylvania held that wrongful death and survival actions under 42 Pa.C.S. §§ 8301 and 8302 may be brought by the estate of a stillborn child for fatal injuries the child suffered while viable in the womb. In Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993), the Court, in an opinion announcing its judgment, declined to extend those actions to a non-viable fetus that was not born alive. If the baby was born alive, even briefly, viability does not matter under Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993). In most cases the claim must be filed within two years under 42 Pa.C.S. § 5524.

When parents call me after losing a baby before birth, they usually want to know whether the law even recognizes what happened to their child. For a viable unborn child in Pennsylvania, it does.

What the Pennsylvania Supreme Court Decided in Amadio v. Levin

Before 1985, Pennsylvania required a live birth. Earlier decisions, including Carroll v. Skloff (1964), Marko v. Philadelphia Transportation Co. (1966) and Scott v. Kopp (1981), held that a stillborn child's estate could not sue under the Wrongful Death Act or the Survival Statute.

Amadio v. Levin overruled those cases. Jennifer Amadio was a full-term baby who was stillborn at a Philadelphia hospital, and her parents alleged that the mother's obstetricians were negligent. The Court stated that it would "recognize that survival and wrongful death actions lie by the estates of stillborn children for fatal injuries they received while viable children en ventre sa mere" (in the mother's womb). It explained that "the 'live birth' or 'still birth' of a child will no longer be determinative of that child's status as an individual under our survival or wrongful death statutes."

The Court also explained whose claim this is. It wrote that "the child's estate is the proper party to seek recovery for the decedent child's funeral and medical expenses and pecuniary losses under the Wrongful Death Statute and for the loss of earning power less the costs of maintenance and for the decedent's pain and suffering under the Survival Statute." Any recovery by a stillborn child's estate is distributed under Pennsylvania's intestacy rules, 20 Pa.C.S. § 2101 et seq.

Why viability became the line

The Amadio majority opinion contains broad language about a child being a separate individual "from the moment of conception." Its holding, however, was framed around a viable child, and a concurring opinion by Justice Zappala stated that "the question involved in circumstances implicating 'viability' in other ways must be left for another day."

That day came in 1993. In Coveleski v. Bubnis, a woman who was about eight weeks pregnant was a passenger in a Jeep that went into a ravine in Zerbe Township. In an opinion announcing the judgment of the Court, Justice Montemuro wrote that whether a cause of action exists for a non-viable fetus "was not decided" in Amadio, and that "We decline to extend liability under our wrongful death and survival acts any further." The opinion summarized the rule this way: "in order to maintain an action for wrongful death or survival there must be either a child born alive ... or a viable fetus capable of an independent existence at the time of death." It left any expansion to the General Assembly.

The Superior Court reached the same result in McCaskill v. Philadelphia Housing Authority, 419 Pa. Super. 313, 615 A.2d 382 (1992), involving a pregnancy in its seventeenth week. It held "that no cause of action may be maintained in wrongful death and survival on behalf of a non-viable fetus." The court described viability as "that stage of prenatal development at which the fetus would be capable of independent existence if removed from its mother's womb."

The current text of 42 Pa.C.S. § 8301 does not separately address unborn children. The rule comes from these appellate decisions. I have not found a later Pennsylvania appellate decision or statute that overrules Amadio or extends civil wrongful death claims to a non-viable pregnancy. An attorney can confirm whether anything has changed when reviewing your case.

When the baby is born alive

Viability matters only when the child dies before birth. In Hudak v. Georgy, triplets were delivered prematurely, and the parties stipulated that they were not viable. All three were born alive. Two died within about twenty minutes and the third about ten hours later. The Supreme Court allowed wrongful death and survival actions and reaffirmed "the unremarkable proposition that an infant born alive is, without qualification, a person." If your baby showed signs of life after delivery, viability is not the question.

Quick Reference: Which Claims May Exist

Situation	Wrongful death and survival claim for the child?	Key authority
Viable unborn child, stillborn because of injuries caused by someone's negligence	Yes	Amadio v. Levin (1985)
Baby born alive who later dies from prenatal or birth injuries, regardless of viability	Yes	Hudak v. Georgy (1993)
Pregnancy loss before viability, no live birth	No, under current case law	Coveleski v. Bubnis (1993); McCaskill (Pa. Super. 1992)
Mother injured in the same incident	The mother may have her own personal injury claim in any of these scenarios if someone else's negligence caused her injuries	42 Pa.C.S. § 5524(2) (deadline); Amadio v. Levin (parental grief recoverable as part of the parent's own injury claim)

The Mother's Own Claim for Her Injuries

Whatever stage the pregnancy had reached, a mother who was hurt because of someone else's negligence may have her own claim for her own injuries. It is separate from any claim for the baby and is generally subject to the same two-year deadline under 42 Pa.C.S. § 5524(2).

Amadio explains how grief fits in. The Court wrote that "a parent's pain and suffering for the loss of its child is recoverable only as an element of the damages suffered because of an injury sustained to the person of the parent." In practical terms, a mother who was physically injured in a crash or during a negligent delivery may seek compensation for her physical injuries and the emotional suffering that comes with them, including the loss of the pregnancy. An attorney can confirm how this applies to your facts.

In a motor vehicle crash, the mother's own recovery for pain and suffering can also depend on her auto insurance. If she is covered by the limited tort option, 75 Pa.C.S. § 1705 generally bars recovery for pain and suffering and other nonmonetary damages unless the injuries meet the statutory definition of "serious injury" or another exception applies. Medical bills and other out-of-pocket losses remain recoverable. See our comparison of limited tort and full tort coverage.

Pennsylvania does not allow parents to recover for the loss of a child's companionship as a separate "filial consortium" claim. McCaskill declined to recognize one, noting that consortium claims in Pennsylvania are limited to spouses.

What Compensation May Be Available

Pennsylvania divides death claims into two actions. You can read more about the difference in our comparison of wrongful death and survival claims.

• Wrongful death action (42 Pa.C.S. § 8301). The statute allows an action "to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another." It exists "only for the benefit of the spouse, children or parents of the deceased." For a stillborn child, that means the parents. Section 8301(c) lists "reasonable hospital, nursing, medical, funeral expenses and expenses of administration" as recoverable, and Amadio adds the pecuniary losses described above.
• Survival action (42 Pa.C.S. § 8302). The statute provides that "All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants." Under Amadio, the stillborn child's estate may seek the child's lost earning power less the cost of maintenance and the child's pain and suffering. See our overview of the Pennsylvania survival action.
• The mother's personal injury claim. Her medical bills, lost income, pain and suffering, and the related emotional harm discussed above, subject to any limited tort election in a motor vehicle case.

For a fuller explanation of each category, see what damages a Pennsylvania family can recover after a wrongful death.

Who Files the Claim

Under Pa.R.C.P. 2202(a), "an action for wrongful death shall be brought only by the personal representative of the decedent." In Amadio, the parents sued both in their own right and as administrators of their daughter's estate.

Rule 2202(b) adds a backstop. If no wrongful death action has been brought within six months after the death, a person entitled to recover may bring the action as trustee ad litem for everyone who shares in the damages. Our article on who can file a wrongful death claim in Pennsylvania walks through this, and whether you have to open an estate before filing covers the paperwork.

Common Situations That Lead to These Claims

Car and truck crashes involving a pregnant driver or passenger

Scott v. Kopp (an eight-month pregnancy) and Coveleski both arose from motor vehicle crashes. Abdominal trauma from a seat belt, airbag or steering wheel can cause a placental abruption or other injury to the baby even when the mother's own injuries seem manageable. If a commercial vehicle was involved, the claim may reach the driver, the motor carrier and others. See our pages on commercial truck accident claims and car crash injury cases.

Medical negligence during pregnancy or delivery

Amadio itself was a claim against obstetricians. Claims against health care providers are governed by the Medical Care Availability and Reduction of Error (MCARE) Act, which has its own rules. For example, MCARE section 513(d) provides that a death or survival claim against a health care provider "must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death." Medical cases also carry additional filing requirements. An attorney can confirm which rules apply to your case.

Mistakes Families Should Avoid

• Assuming there is no claim because the baby was stillborn. Since 1985, a viable stillborn child's estate can bring a claim.
• Giving the at-fault insurer a recorded statement about the pregnancy before getting advice.
• Not requesting records. Prenatal records, ultrasound reports, fetal monitoring strips, the delivery record and any pathology or autopsy findings are often the key evidence on viability and cause of death.

Why Acting Now Matters

Section 5524 requires that "An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another" be commenced within two years. A wrongful death claim is generally measured from the date of death, while a survival claim and the mother's own injury claim are generally measured from the date of injury, so the dates can differ when a baby is stillborn days after the injury. Medical cases have the MCARE rules described above, and claims against government entities have their own notice rules (see deadlines for claims against Pennsylvania government entities). Our statute of limitations FAQ has more detail.

Evidence also disappears. Crash vehicles are repaired or salvaged, and a trucking company may not keep every record forever (see trucking company record retention). In a crash case, I send preservation letters early. In a medical case, getting the complete chart, including fetal monitoring data, is an early priority.

What Happens Next

1. Free, confidential consultation about what happened and the stage of pregnancy.
2. Records and investigation. We gather medical records, the crash report (see how to get your Pennsylvania crash report) and other evidence, and consult qualified medical reviewers on viability and causation.
3. Opening the estate. A parent is usually appointed personal representative so the wrongful death and survival claims can be filed.
4. Claims and filing. We present the claims to insurers and, when needed, file suit in the Court of Common Pleas within the deadline.
5. Court approval. Settlements of wrongful death and survival claims may need court approval. See court approval of wrongful death settlements.

Why Families Work With Quinlan Law Group

I am Sean Quinlan, a Pennsylvania lawyer admitted in 2001, with offices in Camp Hill and Harrisburg. I send preservation letters early when evidence is at risk. You can learn more about our Pennsylvania wrongful death practice or read our answers to common wrongful death questions.

Frequently Asked Questions

Can parents file a wrongful death claim for a stillborn baby in Pennsylvania?

Yes, if the baby was viable when the fatal injuries occurred. In Amadio v. Levin (1985), the Pennsylvania Supreme Court held that wrongful death and survival actions lie by the estates of stillborn children for fatal injuries received while viable in the womb. The parent appointed as personal representative usually brings the claim.

What if the pregnancy loss happened before viability?

Under current case law, the baby's estate cannot bring a wrongful death or survival claim for a non-viable fetus that was not born alive. Coveleski v. Bubnis (1993) and McCaskill v. Philadelphia Housing Authority (1992) both declined to recognize such claims. The mother may still have her own personal injury claim if she was injured.

What if my baby was born alive but premature and died soon after?

Viability does not matter if the baby was born alive. In Hudak v. Georgy (1993), the Pennsylvania Supreme Court allowed wrongful death and survival actions for premature triplets who were born alive and died within hours, holding that an infant born alive is a person under these statutes.

How is viability proven?

Viability means the baby could have lived independently outside the womb. It is usually proven with prenatal records, ultrasound and gestational age findings, delivery and pathology records, and testimony from qualified medical witnesses. An attorney can confirm what evidence your case may need.

Can the mother recover for her own injuries and grief?

Often, yes. A mother injured in a crash or by medical negligence may have her own personal injury claim if someone else's negligence caused her injuries. The Pennsylvania Supreme Court has explained that a parent's pain and suffering over the loss of a child is recoverable as part of the damages for the parent's own physical injury. In a car crash case, a limited tort election can restrict recovery for pain and suffering unless an exception applies.

How long do we have to file?

Generally two years under 42 Pa.C.S. § 5524, measured from the date of death for the wrongful death claim and generally from the date of injury for the survival claim. For medical negligence claims, the MCARE Act requires death and survival actions to be commenced within two years after the death, absent affirmative misrepresentation or fraudulent concealment of the cause of death. Claims against government entities can require written notice within six months.

Do we need to open an estate for a baby who was stillborn?

Usually yes. Pennsylvania Rule of Civil Procedure 2202 requires a wrongful death action to be brought by the personal representative of the decedent, and the parents in Amadio sued as administrators of their daughter's estate. If no action is filed within six months, a person entitled to recover may sue as trustee ad litem.

Talk to a Pennsylvania Injury Lawyer About Your Case

If you lost a baby because of a crash, a medical error or someone else's negligence, you do not have to figure out the law alone. Call (717) 724-7503 or request a free case review. Your consultation is free and confidential. We handle injury cases on a contingency fee, so you pay no attorney fee unless there is a recovery. You may be responsible for certain case costs and expenses in addition to the fee, as explained in your written fee agreement. Our Camp Hill office at 3425 Simpson Ferry Rd, Suite 100, Camp Hill, PA 17011 serves families throughout Pennsylvania.

This article is general information about Pennsylvania law, not legal advice for your specific situation, and reading it does not create an attorney-client relationship. Attorney advertising. Sean Quinlan, Esq., Quinlan Law Group, Camp Hill, PA.