August 20, 2001 >
The Supreme Court of the state of Washington has allowed a girl to sue a local Burger King restaurant for damages she suffered in the womb as a result of an on-the-job accident suffered by her mother.

Families usually cannot sue for damages under Washington's worker's compensation law. But the high court said that in some cases, where a third party is directly injured, that person can legally bring a lawsuit.

According to the Associated Press, the case involves Patricia Meyer, now 6 years old and living in Yelm, Wash. Her mother, Verona, was working in a Burger King restaurant in Lacey in April 1995 when she lost her footing and struck her lower abdomen on a table known as the "Whopper Board."

Verona Meyer was nearly full-term with Patricia, according to the family, and the fall injured the placenta, depriving the unborn child of oxygen. Patricia was born a few hours later with what the parents describe as severe and permanent mental and physical disabilities.

The Meyers claimed damages for their daughter's injuries and for their own loss of a relationship with her. Motions for dismissal were shot down by the trial court and an appeals court before also being denied by the Supreme Court.

Though courts in Washington and other states have held that a child can sue for negligence for prenatal injuries, Washington's strict worker's compensation law bars most lawsuits by families and dependents of the injured worker, Justice Charles Johnson noted.

But the court said the law doesn't block a claim that someone in the family was independently injured at the same time the worker was involved in a workplace accident, the unborn child, in this case.

The court dismissed as "legally unpersuasive" the employer's argument that it is unable to protect the unborn child or fetus without breaking anti-discrimination laws.

"An employer need only fully inform the pregnant employee of the risks in order to directly avoid discriminating," Johnson wrote. "The burden remains on the plaintiff to prove negligence.

He added: "We are mindful of the fact that a claim for prenatal injuries presents difficult causation issues. However, difficulty of proof does not prevent the assertion of a legal right."

In an unusual separate concurring opinion, Justice Bobbe Bridge took pains to "emphasize the narrow nature of the majority's holding, which merely grants retroactive relief to a child who was born alive for injuries that were suffered before her birth."

The case now goes back to Pierce County Superior Court for a trial. The family attorney, George Michael Riecan of Tacoma, said it could take up to 18 months to get a new court date.

The case is significant, given how many pregnant women are in the work force, Riecan said.

"We're quite relieved," Verona Meyer was quoted as saying by the AP. "It's not over, but at least we can go on from here."

Riecan said the little girl is "essentially in a vegetative state" and that the situation weighs heavily on the family, emotionally and financially. The Meyers had four boys, and Patricia was their long-awaited daughter, he said.

To view the Associated Press story, click here.

KF 8-20-01