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In Missouri, a personal injury lawyer can file a wrongful death action on behalf of an unborn child, as under Missouri’s wrongful death statutes and the court’s interpretation of them, an unborn baby is a “person” capable of supporting a claim for wrongful death pursuant to § 537.080.

In Conner v Monkem Co, Inc., 898 S.W.2d 89 (Mo. 1995), the Missouri Supreme court decided just that as the legislature never expressly defined this within the wrongful death statute to include or exclude unborn children. The court stated the following, keeping in mind many other states require the fetus to be “viable” to be able to assert a wrongful death claim.

As the question before us is one of statutory construction, we must be more sensitive to legislative direction and less sensitive to our own evaluation of policy considerations. Thus, the legislature’s relatively clear expression in § 1.205 that parents and children have legally protectable interests in the life of a child from conception onward must be accorded greater weight than the many other and obvious difficulties associated with the type of claim here asserted.

Many people may agree or disagree with a Missouri wrongful death action brought by a “nonviable” fetus, which leads me to a more important point, especially for all you tort “reformers” out there, just because a case can be filed does not mean it will be successful.

Plaintiff’s victory to this point, however, may be largely pyrrhic. While we hold that a wrongful death claim may be stated for a nonviable unborn child, plaintiff’s ability to prove damages is certainly subject to question. Missouri has recognized that “[s]peculative results are not a proper element of damages.” Wise v. Sands, 739 S.W.2d 731, 734 (Mo.App.1987). In Girdley v. Coats, 825 S.W.2d 295, 298 (Mo. banc 1992), we discussed the difficulty of establishing damages in a wrongful conception case. There, it was noted:

Who can divine, soon after birth, whether the child will be a financial boon or burden to the parents, what level of education will be required or what unique expenses could arise? These determinations are beyond the scope of probative proof.

Yes the wrongful death case can be filed, but can damages be proven? I think beyond financial burden or boon, the love, support, and absolute joy of a child is enough to prove damages to me, well beyond mere speculation.

Clayton wrongful death attorney Ben Sansone handles death cases from auto accidents to medical malpractice.

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