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Werling v. Sandy

Citation. 17 Ohio St. 3d 45, 476 N.E.2d 1053 (1985)
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Brief Fact Summary.

Plaintiff’s child was stillborn. Plaintiff brought a wrongful death suit against the physician.

Synopsis of Rule of Law.

A viable fetus which is negligently injured and subsequently stillborn, may be the basis for a wrongful death action


Plaintiff’s child was stillborn and plaintiff brought a wrongful death suit against defendant, the physician, claiming that the physician’s negligence resulted in the death of the fetus.


Does an action for wrongful death exist where the decedent was a stillborn fetus?


Yes. The judgment was reversed and remanded on the grounds that the claim for wrongful death of a viable fetus was actionable.


The Court first addressed the issue whether an unborn fetus may be considered a “person” for the purposes of the statute under consideration, and the Court answered affirmatively as long as the fetus was viable at the time of its injury. Both federal statutes and common-law decisions lend support to the rights of an unborn child. The intestate rights of a posthumous child are recognized in statute. A child in gestation who is subsequently born alive may be considered a life in being throughout the gestation period for purposes of the now statutory rule against perpetuities. The definition of “decedent” within the Uniform Anatomical Gift Act includes a stillborn infant or fetus.

The Court also pointed out that it is logically indefensible to deny an action where the child is stillborn, and yet permit the action where the child survives birth but only for a short period of time. The requirement of birth in this respect is an artificial demarcation. Not allowing the cause of action would also serve to reward the tortfeasor by allowing him to escape liability upon an increase in the severity of the harm.

Accordingly, the Court held that a viable fetus which is negligently injured, and subsequently stillborn, may be the basis for a wrongful death action.

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