The following information is important if you were injured in an automobile accident while pregnant. The rule discussed below also applies for other personal injury claims suffered while pregnant.
Oregon Courts recognize a special claim of pain and suffering claim for fear of miscarriage.
Fehely v. Senders 170 Or 457, 135P.2d 283 (1943).
Fehely involved a plaintiff who was injured in a car accident. After the accident, plaintiff “was afraid of what the blow on her abdomen might do to the child or might do to herself. This apprehension continued until the baby came and for a few days thereafter.” 170 Or. at 460. The baby was born healthy — “there was a normal delivery and normal baby.” Id.
On appeal the Supreme Court framed the question as follows:
“[W]hether the apprehension (which in this instance proved to be groundless) of a pregnant woman that her child may be born dead or deformed as the result of an injury to her person is an element of damage.”Fehely, 170 Or. at 460.
Ultimately, after canvassing the law of several jurisdictions pertaining to the recoverability of emotional distress damages, the court concluded:
“We think that apprehension of that sort is the natural consequence of a blow on the abdomen such as the plaintiff suffered, or at least that a jury could so find, and that it could be mental distress the most acute.”Id. at 474.
Fehely is remains good law. In fact, its application has expanded. For example, in Simons v. Beard, 188 Or. App. 370 (2003), the Oregon Court held that an emotional distress claim based for fear of losing an un born child requires neither
- Viability of the fetus; Simons at 381; nor
- Physical impact (as long as breach of care causing the apprehension exists); Simons at 383