## Facts

- A pregnant patient received prenatal care and delivery-related treatment from Dr. Sandy and related defendants.
- The fetus was delivered stillborn.
- The estate’s administratrix alleged defendants’ negligence injured a viable fetus in utero and caused the fetus to die before birth.
- The administratrix filed a wrongful-death action under Ohio Rev. Code § 2125.01 for the benefit of the parents as statutory beneficiaries.
- The trial court dismissed the complaint, concluding Ohio law recognized no wrongful-death action for a fetus; the court of appeals affirmed.
- The Ohio Supreme Court accepted review to decide whether a stillborn fetus can be a “person” under the wrongful-death statute.

## Issues

1. Whether Ohio Rev. Code § 2125.01 permits a wrongful-death action when the decedent is a viable fetus negligently injured in utero and subsequently stillborn.
2. Whether, for purposes of § 2125.01, a viable fetus may be treated as a “person” whose death gives rise to statutory wrongful-death damages for surviving beneficiaries.

## Decision

- The Ohio Supreme Court reversed the court of appeals and remanded.
- The court held that a viable fetus negligently injured in utero and subsequently stillborn may be the basis for a wrongful-death action under Ohio Rev. Code § 2125.01.
- The case was returned for further proceedings on the merits of the wrongful-death claim.

## Legal Principles

- Ohio Rev. Code § 2125.01 provides a wrongful-death remedy when the death of a person is caused by a wrongful act, neglect, or default that would have supported a damages action had death not occurred.
- For purposes of § 2125.01, a viable fetus is a “person” if the fetus is viable at the time of the alleged in utero injury and is later stillborn as a result.
- The wrongful-death statute is remedial and is construed to provide compensation to statutory beneficiaries where denial would create irrational gaps in recovery.
- Requiring live birth as a condition of recovery is an artificial line when the alleged tortious injury occurs in utero; denying recovery for stillbirth while allowing it when the child briefly survives birth is illogical and can reduce liability when harm is more severe.
- Ohio law’s recognition of fetal interests in other contexts supports treating a viable fetus as legally cognizable for wrongful-death purposes.

## Conclusion

The Ohio Supreme Court recognized that Ohio’s wrongful-death statute allows recovery for the death of a viable fetus negligently injured in utero and later stillborn, rejecting live birth as a necessary condition and remanding for litigation of the claim.


Werling v. Sandy, 17 Ohio St. 3d 45, 476 N.E.2d 1053 (Ohio 1985)