Smith v. Columbus Community Hospital is the Nebraska Supreme Court's most recent reaffirmation of the traditional rule that no cause of action may be brought on behalf of a stillborn child under the Nebraska wrongful death statute. The court disregarded the significant trend in other jurisdictions favoring the recognition of a statutory cause of action for the wrongful death of a stillborn child. This Note analyzes the significance of the court's holding and criticizes its rationale. The Note begins by outlining the majority and dissenting opinions in Smith, including the general holding of the case and the basic arguments used by the majority and dissenting opinions. Second, the Note analyzes the logic of the majority's justification for refusing to recognize the cause of action, including its interpretation of the Nebraska wrongful death statute, its reliance on previous Nebraska cases on this issue, its neglect of evidence of medical advances in the study of fetal development and birth, and its failure to consider the persuasive opinions of those jurisdictions which have allowed a statutory cause of action for wrongful death of a viable, stillborn child. The Note concludes that the court is clinging to outdated precedent and ignoring advances in medical science to justify its refusal to recognize this cause of action.
Sherry L. Hubert,
Nebraska Fights the Trend to Recognize the Unborn Child under Its Wrongful Death Statute,
68 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol68/iss3/8