Fetal Personal Injury

First published in The Lawyers Weekly September 7, 2001,  Vol. 21, No. 17

Death of a fetus will not result in very high Quantum in most circumstances.

However, traumatic fetal loss may result in considerable psychological injury to the parents, and can occasionally generate significant loss of parental income.

Severe fetal injury short of death can generate some of the highest Personal Injury settlements or awards.

Moderate to severe blunt trauma, and injury that penetrates the mother’s abdomen, may Cause trivial-to-catastrophic fetal injury that is obvious, immediately or shortly after a MVA.

The remainder of this article addresses aspects of fetal injury which are not so obvious, but about which Personal Injury lawyers should be aware.

Both plaintiff and defence counsel must be vigilant that the commonest cause of maternal injury during pregnancy is assault, usually by the current partner.

Although MVA is no respecter of pregnancy, undisclosed assault by partner or parent is a much commoner source of potential fetal injury.

Lawyers practising in the area of Personal Injury should be aware that pregnant clients will occasionally try to blame a MVA or other compensable accident for injuries that arise from assault.

Do traumatic injuries in early pregnancy Cause congenital abnormalities in the newborn infant? In most MVA cases, such adverse effects cannot be proven.

Because MVA and congenital abnormalities are both relatively common hazards of pregnancy, coexistence of the two is occasionally inevitable.

Just as diagnostic amniocentesis occasionally Causes limb deformities, some congenital abnormalities can be Causally attributed to MVA in early pregnancy, on balance of probability.

Furthermore drugs, appropriately or inappropriately prescribed for the adverse maternal effects of personal injury, will rarely Cause fetal injury.

Loss of blood from the fetal circulation into the mother’s may Cause fetal anemia that is sometimes life-threatening.

If significant bleeding goes unrecognised, compromise of vital functions may result, including death or brain damage.

Premature birth can Cause many life-threatening conditions of the newborn infant, and permanent disabilities, including severe brain injury.

Establishing a Causal relationship between compensable trauma and premature labour can be difficult, particularly if there is a delay of many days or a small number of weeks between the two events.

Medical evidence will take into account pain or tenderness of the uterus, abnormalities of fetal heart-rate, evidence of internal bleeding, vaginal loss of blood or amniotic fluid, and subsequent infection of the membranes (chorio-amnionitis).

The surrounding bag of amniotic fluid well protects the fetus from mild-to-moderate trauma.

However, after moderate-to-severe MVA, the bag of fetal membranes may be weakened or ruptured and premature labour result.

In up to a third of MVA cases, depending on severity, part of the placenta separates prematurely (abruptio) from the lining of the uterus.

Such disruption may result in fetal death or premature birth.

Children from subsequent pregnancies can potentially be claimants.

Even minor amounts of bleeding from the fetal circulation into the mother’s may, particularly in a Rhesus-negative mother, create antibodies that can seriously compromise the health of a future newborn infant, Causing permanent brain damage in some instances.

Such antibody-formation can be largely prevented by appropriate administration of gamma-globulin within 72 hours of the MVA.

Following compensable trauma, the clinical records may not identify all the actual or potential fetal injuries that are medicolegally important.

For completeness, counsel may need to raise some of these issues with attending physicians or independent medical assessors.

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