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Wrongful Death Actions for Unborn Children
Posted by: euser
August 03, 2007

Under Minn. Statute 573.02, a surviving spouse or next of kin of a deceased can bring and action for wrongful death when the death was caused by the wrongful act or omission of any person or corporation if the decedent might have maintained an action, had the decedent lived, for an injury caused by a wrongful act or omission.

In 1949, Minnesota became the first state to interpret its wrongful death statute to include a cause of action for the wrongful death of an unborn child. Since then, 34 other states have also recognized the ability to sue for wrongful death of a fetus. This cause of action is not recognized by ten states, including California, Florida, New York, and Texas, and the remaining five states remain undecided.

Under Minnesota case law, in addition to proving the traditional elements of wrongful death, a plaintiff who brings an action for the wrongful death of an unborn child must show that the child was viable and capable of separate and independent existence from the pregnant mother at the time of death. This is shown by introducing medical evidence or expert testimony.

Minnesota has a three to six year statute of limitations for wrongful death, meaning that a plaintiff must commence an action within thee years after the date of death, provided that the action is commenced within six years of the wrongful act or omission. Your case could be time-barred if a lawsuit is not commenced within this period. The attorneys are Milavetz, Gallop & Milavetz are experienced and knowledgeable in the area of wrongful death and can help to evaluate your potential claim today.

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Introduction to Minnesota Wrongful Death Statute
Posted by: euser
December 12, 2006

The Minnesota Wrongful Death Statute is as follows:

573.02 ACTION FOR DEATH BY WRONGFUL ACT; SURVIVAL OF ACTIONS.
    Subdivision 1. Death action. When death is caused by the wrongful act or omission of any
person or corporation, the trustee appointed as provided in subdivision 3 may maintain an action
therefor if the decedent might have maintained an action, had the decedent lived, for an injury
caused by the wrongful act or omission. An action to recover damages for a death caused by the
alleged professional negligence of a physician, surgeon, dentist, hospital or sanitarium, or an
employee of a physician, surgeon, dentist, hospital or sanitarium shall be commenced within three
years of the date of death, but in no event shall be commenced beyond the time set forth in section
541.076. An action to recover damages for a death caused by an intentional act constituting
murder may be commenced at any time after the death of the decedent. Any other action under this
section may be commenced within three years after the date of death provided that the action must
be commenced within six years after the act or omission. The recovery in the action is the amount
the jury deems fair and just in reference to the pecuniary loss resulting from the death, and shall
be for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary
loss severally suffered by the death. The court then determines the proportionate pecuniary loss of
the persons entitled to the recovery and orders distribution accordingly. Funeral expenses and any
demand for the support of the decedent allowed by the court having jurisdiction of the action, are
first deducted and paid. Punitive damages may be awarded as provided in section 549.20.
If an action for the injury was commenced by the decedent and not finally determined while
living, it may be continued by the trustee for recovery of damages for the exclusive benefit of the
surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the
death. The court on motion shall make an order allowing the continuance and directing pleadings
to be made and issues framed as in actions begun under this section.
    Subd. 2. Injury action. When injury is caused to a person by the wrongful act or omission of
any person or corporation and the person thereafter dies from a cause unrelated to those injuries,
the trustee appointed in subdivision 3 may maintain an action for special damages arising out of
such injury if the decedent might have maintained an action therefor had the decedent lived.
    Subd. 3. Trustee for action. Upon written petition by the surviving spouse or one of the
next of kin, the court having jurisdiction of an action falling within the provisions of subdivisions
1 or 2, shall appoint a suitable and competent person as trustee to commence or continue such
action and obtain recovery of damages therein. The trustee, before commencing duties shall file a
consent and oath. Before receiving any money, the trustee shall file a bond as security therefor
in such form and with such sureties as the court may require.
    Subd. 4. Applicability. This section shall not apply to any death or cause of action arising
prior to its enactment, nor to any action or proceeding now pending in any court of the state of
Minnesota, except, notwithstanding section 645.21, this section shall apply to any death or cause
of action arising prior to its enactment which resulted from an intentional act constituting murder,
and to any such action or proceeding now pending in any court of the state of Minnesota with
respect to issues on which a final judgment has not been entered.
History: (9657) RL s 4503; 1911 c 281 s 1; 1935 c 325 s 1; 1943 c 538 s 1; 1951 c 697 s 1;
1955 c 407 s 1; 1957 c 712 s 1; 1965 c 837 s 1; 1967 c 158 s 2; 1971 c 43 s 1; 1973 c 717 s 30;
1978 c 593 s 1; 1983 c 347 s 2,3; 1986 c 444; 2002 c 403 s 6

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