Ky. Supreme Court Asked to Allow Damages in Wrongful Death Case Involving Early-Term FetusPosted on August 22nd, 2011 No comments
The Courier Journal reports on the case of Desiree Amber Stevens who, along with her 14 week old unborn fetus, was killed when another driver caused a horrific crash. The driver and Progressive Direct, Steven’s insurance carrier, settled the wrongful death claim filed on her behalf by her father, Thomas Stevens. However, both the driver and Progressive Direct refused to pay damages for the wrongful death of Steven’s fetus. Circuit Court Judge Thomas Jones upheld this decision, writing; “Harsh as it seems, damages for a nonviable fetus are not recoverable.”
The Kentucky Court of Appeals affirmed the Judge’s ruling, the second time in two years it has denied damages for the negligent death of an early-term fetus. This decision is in accordance with other Kentucky decisions that have rejected damages for a nonviable fetuses, generally defined as those that are less than 24 weeks. Tom Stevens has now asked the Supreme Court to review the case.
Perhaps Mr. Steven’s attorney, J.T. Gilbert, said it best; “It is important to protect the rights of anybody who is injured and to hold the wrongdoer accountable.”
Had the conduct of the offending driver been criminal, she could have been convicted of a homicide under Kentucky’s fetal homicide law. It seems completely arbitrary for Kentucky to hold that the death of an unviable fetus can form the basis of a legal action against someone, but that same act, if only negligent, cannot.
It is time for Kentucky to join that the other nine states who recognize the right to recover damages for the negligent death of a fetus, regardless of whether or not it is viable.
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