While the death of a baby before 20 weeks of pregnancy is known as miscarriage, the death of a baby at or after 20 weeks of pregnancy is known as stillbirth. This tragic event is far less common than it used to be, but thousands of stillbirths occur each year in the US. Although some stillbirths could not have been prevented, many of them result from errors by health care providers, without which the baby could have survived.
Risk During Labor
According to the World Health Organization, half of stillbirths happen during labor.
For example, a failure to account for risk factors during a pregnancy or a failure to monitor for fetal distress before and during childbirth can increase the risk of stillbirth. Among other concerns, umbilical cord complications or problems with the placenta in the uterus can deprive a baby of oxygen and nutrients necessary to their survival. Maternal infections such as Group B strep also can cause the death of a fetus. Inadequate amniotic fluid, known as oligohydramnios, can carry a risk of stillbirth as well. These are just some examples of conditions that can lead to the death of a fetus, especially if doctors do not diagnose and treat them as promptly as they should.
Traditional Obstacles to Stillbirth Claims
Prospective parents who are eagerly awaiting their child likely will be devastated by a stillbirth. They may want to pursue justice by holding an at-fault health care provider accountable through a medical malpractice lawsuit. However, these claims historically have faced more obstacles than other legal claims based on birth injuries. This is because a deceased infant will not need medical treatment, medications, and other assistance in coping with the consequences of birth injuries. Compensation thus does not serve the same purpose as with a child who survives birth injuries.
Claims against a person or entity that causes a fatal accident fall within the wrongful death law in each state. Only certain beneficiaries of a victim may recover wrongful death damages, which are usually based on the contributions that the victim would have provided to the beneficiaries had they survived. A court likely will struggle to determine with any certainty the earning potential of a stillborn child or their future economic contributions to their parents. As a result, some courts rejected wrongful death claims arising from stillbirth. These courts noted that a mother still can bring an ordinary personal injury lawsuit based on her own injuries from the same events. However, a mother may not suffer any physical injuries due to medical malpractice that causes a stillbirth.
Evolution of Stillbirth Claims
Even if parents do not suffer physical injuries from a stillbirth, they likely will suffer severe emotional harm. Traditionally, many laws governing personal injury cases did not permit claims based exclusively on psychological harm. Plaintiffs could recover these types of damages only if they suffered physical injuries from the same incident.
More recently, though, many legislatures and courts have recognized that emotional harm may arise without physical harm, especially for serious events like stillbirth. State laws are inconsistent, and courts have taken a broad range of approaches to claims based solely on emotional harm. In some states, parents can pursue wrongful death lawsuits based on stillbirth as long as the baby was viable before stillbirth occurred.
Viability, which means that the child could survive outside the womb, usually occurs at 24 weeks of pregnancy.
As an alternative, parents may be able to pursue claims based on negligent infliction of emotional distress. Damages awards vary widely in these cases.
Damages and Damages Caps in Stillbirth Claims
Some costs arising from stillbirth are financial and relatively quantifiable. These may include autopsies on the baby and burial arrangements. Significant costs also may arise from treatment for depression and other mental health conditions. Either or both parents may need regular therapy sessions and medications. Sometimes a stillbirth can cause psychological problems that are serious enough to require time off from work. This can result in lost income or a loss of professional opportunities.
States that permit stillbirth claims sometimes impose low damages caps. A compensation award thus may not fully account for all the losses sustained by parents. Balanced against the cost of retaining expert witnesses to support the claim, a very low damages cap in a stillbirth case may make litigation not worth the cost. Sometimes parents find that birth injury attorneys or other medical malpractice lawyers do not want to take these cases, due to the smaller reward. Parents still can bring a case on their own, but the complexities in medical malpractice claims may diminish their prospects of success.