Title Image


This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.

West Virginia’s Child Neglect Resulting in Death Statute Does Not Apply to a Fetus

Although the below case, which involves the tragic death of an 11-day-old child, pertains to a criminal statute, it is important to civil matters from the standpoint of how the judiciary looks at the plain language of a statute when interpreting the statute.

In West Virginia v. Louk, 237 S.E.2d 219 (W.Va. 2016), the defendant injected methamphetamine when she was thirty-seven weeks pregnant.  Hours later, the defendant suffered acute respiratory distress caused by the methamphetamine.  Due to concerns the fetus was being deprived of oxygen, a doctor performed an emergency C-section.  A forensic pathologist, who performed the autopsy on the child, stated the child was born “essentially brain dead” from a lack of oxygen.  Id. at 222.  A Nicholas County, West Virginia Grand Jury indicted the defendant on one felony count of child neglect resulting in death pursuant to W.Va. Code Section 61-8D-4a.  A jury later convicted defendant.  She was sentenced to be incarcerated for three to fifteen years.  The defendant appealed the conviction.

On appeal, the West Virginia Supreme Court of Appeals addressed this issue: “whether a pregnant woman who ingests a controlled substance which results in harm to her subsequently born child can be charged with child neglect resulting in death, as set forth in W.Va. Code Section 61-8D-4a.”  Id.   W.Va. Code Section 61-8D-4a provides: “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony ….”  Id. at 222-23.

The defendant argued that an “unborn child” or “fetus” is not a “child” under W.Va. Code Section 61-8D-4a and thus the statute did not apply to her.

After reviewing the plain language of the statute and other statutes passed by the West Virginia Legislature that specifically mention and define “fetus” and mention “unborn child,” the West Virginia Supreme Court of Appeals held that W.Va. Code Section 61-8D-4a does not mention “fetus” or “unborn child.”  As such, the court further held that the child neglect resulting in death statute does not encompass prenatal acts.  Id. at 228.  Because the statute does not apply to a fetus or unborn child or to prenatal acts, the court vacated the conviction and remanded the matter to the circuit court for the entry of a judgement of acquittal.  Id.  

This case is an example of the difficult issues that a court can face in civil and criminal matters.  Yet, the court must follow the plain language of a statute as written and passed by the legislature.


Share on:

Basics on the Wrongful Death Action in West Virginia

This post focuses on the very basics of a wrongful death action in West Virginia.  W.Va. Code § 55-7-5 et seq.

What is a wrongful death action in West Virginia?  West Virginia permits the recovery of damages due to the death of a person from a wrongful act, neglect, or default.  W.Va. Code § 55-7-5.  If damages are recovered, they “shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who where financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution ….”  W.Va. Code § 55-7-6(b).  However, “if there are no such survivors, then the damages shall be distributed in accordance with the decedent’s will or, if there is no will, in accordance with the laws of descent and distribution” as contained in the West Virginia Code.  W.Va. Code § 55-7-6(b).

Who can bring a wrongful death action in West Virginia?  The wrongful death action “shall be brought by and in the name of the personal representative of such deceased person….”  W.Va. Code § 55-7-6(a).

What are the recoverable damages in a wrongful death action in West Virginia?  A jury, or if there is no jury, the court, may award a broad array of damages.  The authority for this is in W.Va. Code § 55-7-6(b): “In every such action for wrongful death, the jury, or in a case tried without a jury, the court, may award damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed ….”  Further, the wrongful death statute specifies that “[t]he verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.”  W.Va. Code § 55-7-6(c)(1).

What is the statute of limitations for a wrongful death action in West Virginia?  “Every such action shall be commenced within two years after the death of such deceased person, subject to the provisions of section eighteen, article two, chapter fifty-five.”  W.Va. Code § 55-7-6(d).

Share on: