by:David Cutshaw, Attorney
On December 13, the Indiana Supreme Court, in the case of Spangler v. Bechtel, determined that the parents of a fully developed fetus which was still-born may recover damages for emotional distress if the child was still-born as the result of medical malpractice. This emotional distress claim by both parents may be based upon the Indiana Medical Malpractice Act and the Child Wrongful Death Act.
The Spangler case represents a change in Indiana law which recognizes the incredible grief that parents experience when a healthy appearing fetus is still-born. We are representing some parents who have just gone through this and it is heart-breaking to hear their stories and hear how hard it is to get over this hideous ordeal.
The Spangler case comes on the heels of a new statute (Ind. Code § 34-23-2-1) passed by the Indiana legislature in 2009 that permits parents whose unborn baby was stillborn (as the result of medical malpractice or negligence such as injury in a car accident) to file a 
wrongful death suit if the fetus has attained viability. (Viability is undefined in the statute, but would probably relate to a fetus who, in the opinion of a physician, would have survived outside the womb.) Prior to the 2009 statute, a fetus which was killed due to a car accident or which died during child birth as the result of malpractice was not considered to be a child under the Child Wrongful Death Act. Such fetuses were considered to be living things in the criminal statutes or context; so it was confusing as to why they were not similarly considered in the civil lawsuit context.
In any event, the Child Wrongful Death statute now permits a parent to recover the loss of the infant’s (viable fetus’s) love, care and affection over the life expectancy of the parents. The Spangler case also allows the parents to recover their emotional distress at having to go through such a tragedy and the years of subsequent emotional distress over the years it takes a parent to get over this ordeal–if ever they do.