New Virginia Fetal Wrongful Death Law Opens New Avenues of Medical Liability

A press release distributed by the plaintiff’s attorneys Kearney, Freeman, Fogarty & Joshi, PLLC, just crossed my desk. In it, the plaintiff’s attorneys are advertising a new law in the state of Virginia that expands medical liability in cases where there is the wrongful death of a fetus. The press release concludes with: “Now, expectant parents will be able to hold responsible parties accountable for the wrongful death of their unborn child. If you have lost an unborn child as the result of medical malpractice, neglect or abuse, please contact an experienced personal injury attorney.”

Certainly extra-conservative Virginia Gov. Bob McDonnell intended the law as a “stepping stone” to fetal personhood and a showdown in the Supreme Court over the constitutionality of abortion; not to op-en new avenues of medical liability. The “Wrongful Death of a Fetus Law” was one of several laws passed in Virginia this year to restrict abortion access. Under this law, perpetrators of any crime or careless action that results in the death of a fetus can be held responsible. Prior to the Wrongful Death of a Fetus Law’s enactment in April of this year, Virginia did not recognize claims for the wrongful death of a fetus.

The unintended consequence of the Wrongful Death of a Fetus Law is that it has opened new avenues for the litigation of medical malpractice. As evidenced by the Kearney, Freeman, Fogarty & Joshi, PLLC, press release I received today, plaintiff’s attorneys are taking full advantage of the new law. They are advertising its existence, and encouraging patients who lost a fetus in the course of medical treatment to sue their healthcare professional. Also liable when a fetus dies is a hospital if it failed to adequately training to staff or failed to maintain adequate safety standards in their facilities.

The unintended consequences of the Wrongful Death of a Fetus Law is that it has opened new avenues to sue Virginia’s healthcare community for medical liability, and the end result is likely Virginia higher medical malpractice insurance costs.

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