Nevada Allows Recovery For Prenatal Injuries

Dorothy White was hurt when the car in which she was riding was hit by a car driven by Henry Rup.  Not only was Ms. White injured but so was her unborn child.  In fact, the injuries were so serious that they caused the child’s death.

Ms. White sued to recover not just for her injuries but also for the wrongful death of her unborn child.  The trial court rejected Ms. White’s claims.  The court said that the negligence of her driver husband was imputed to her and she could not recover.

In White v. Yup, 85 Nev. 527; 458 P.2d 617 (1969), the Nevada Supreme Court rejected the trial court’s finding that the liability of Ms. White’s husband was imputed to her.  The court then went on to consider whether a cause of action could be brought for the wrongful death of a child.

To begin with, the court had to decide whether a child who suffered prenatal injuries could recover.  The court looked at a long list of states that had already allowed recovery for prenatal injuries and compared them with the short list of states that denied such recovery.  The court said:

[I]f, by the negligence or the willful misconduct of someone, an unborn child must go through life crippled, blind, subject to fits, or otherwise changed from a normal human being, one must be impressed by the harshness of the result.

Based upon the weight of authority and the modern trend of cases which have considered this problem, we find that in Nevada a cause of action will lie on behalf of a child for prenatal injuries

85 Nev. at 534, 458 P.2d at 619.

Finally, the court was left to decide whether under Nevada statute the wrongful death claim could be made for an unborn child.

The court again followed the trend of authority and found that a claim can be made under Nevada’s Wrongful Death Statute for the death of an unborn child.  NRS 41.085.

If you have further questions about the right of recovery for prenatal injuries or wrongful death, please contact Mike Mills at Bauman Loewe Witt & Maxwell.  He can be reached at 702.240.6060×114.  You can also email him at mmills@blwmlawfirm.com.

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