Wrongful Death Claims for Nonviable Fetuses: Gonzales v. Mascarenas

The case of Gonzales v. Mascarenas, decided by the Colorado Court of Appeals in 2008, raises pivotal questions about wrongful death claims. Specifically, it addresses whether a wrongful death claim can be pursued for the death of a nonviable fetus born alive. This blog explores the factual background, legal arguments, and the court’s ruling in this complex and emotionally charged case.

Factual Background

On the day of the accident, Shantel Gonzales, the plaintiff, was a passenger in a vehicle driven by Veronica Mascarenas. Gonzales, who was approximately 20-22 weeks pregnant, was taken to the hospital after the accident for observation and discharged two days later. A day after her discharge, Gonzales experienced severe complications, including placental abruption. This led to an emergency cesarean section, resulting in the birth of a male child who lived for just over an hour without medical intervention before passing away.

Gonzales initiated legal proceedings against Mascarenas, alleging personal injury for her own suffering and wrongful death for the loss of her child. The jury awarded her $1,500 in economic damages and $100,000 in noneconomic damages, attributing 50% negligence to Mascarenas. The court ultimately entered a judgment of $64,948.61, inclusive of costs and interest.

Legal Issues

The questions in this case revolved around the application of Colorado’s wrongful death statute, which allows claims for the death of a “person” caused by the wrongful act, neglect, or default of another. Specifically, the court examined:

1. Whether a wrongful death claim can be pursued for the death of a nonviable fetus born alive.
2. Whether the child’s lack of viability at birth affected the applicability of the wrongful death statute.

The statute does not explicitly define the term “person.” This ambiguity required the court to interpret its meaning in the context of a child born alive but nonviable.

The Court’s Analysis

The court’s opinion, delivered by Judge Roy, affirmed that a wrongful death claim could be maintained for a nonviable fetus born alive. Key points of the court’s reasoning included:

• Legal Precedent: The court reviewed both Colorado law and rulings from other jurisdictions, noting a majority view that permits wrongful death claims for nonviable fetuses born alive.
• Statutory Interpretation: The court emphasized that the plain meaning of “person” includes an individual human being. By this definition, the child in question qualified as a person under the statute.
• Medical Testimony: The treating physician testified that the child was born alive and survived for over an hour, despite being nonviable and without medical intervention. This further substantiated the child’s status as a “person” under the law.

The Colorado Court of Appeals ultimately upheld the jury’s verdict, affirming that a wrongful death claim can be pursued for a nonviable fetus born alive. This case underscores the evolving legal interpretations of wrongful death statutes and their application to prenatal injuries and losses.

Our Legal Expertise

At Whitcomb, Selinsky, PC, our team understands the complexities of wrongful death claims. Whether you face a similar legal challenge or have other legal needs, we are here to provide experienced guidance and support. Contact us today to discuss your case.