One Employee Incident, Two Worker Compensation Claims?

Do you have any pregnant employees? If so, are you responsible for work related injuries to their unborn child? It is a delicate situation when it comes to injuries involving those in utero. In the late 1980s, there was a case involving a San Francisco Macy’s department store employee who complained to the company nurse of abdominal pain. The pain was misdiagnosed as gas and was later found to be a ruptured uterus. Even after pleas from the expectant mother, the ambulance was not called for 50 minutes and the delay was determined to be a main contributing factor to the severe brain damage and early demise (age 2) of the child.

The mother sued on behalf of her son but lost, because although Macy’s found that it was indeed negligent, the child was not an employee and therefore his surviving family could collect nothing.

Since the 1980s, there have been other cases involving the employer’s responsibility in fetal injuries. In 1997, the California Supreme Court decided that a child may sue their mother’s employer if they experienced fetal injuries due to unsafe work conditions. Under this decision, fetuses are treated as third parties and employers are liable to any third party customers.

In these times you cannot forbid women to work in areas that may hold toxins or to perform duties that have potential risk to an unborn child. You could send them to different departments during their maternity employment, but only if their doctor is in agreement. If the employer is proactive in preventing these exposures prior to incident, it could be seen as an act of kindness and one of the perks of having a compassionate employer.

It is unfortunate and that a baby’s injury in utero is left to interpretation of Workman’s Comp law. It has been asked that legislature look at the law and define it more clearly. Factory employers, especially, could see costs that might mean the difference between being able to maintain business in the state of California and having to bring the factory to a state that has not yet recognized fetal injury as a work related detriment.

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