Can I Sue For Death Of My Newborn?

Can I Sue For Death Of My Newborn? 2017-12-08T08:47:48-05:00

When a baby dies, a world of hopes and dreams is broken forever. Parents will never be the same. A future that once seemed filled with joy is irreversibly lost. For many families who have lost a baby, the meaning of life as we know it is extinguished in a second.

Legal Action After The Loss Of A Baby

The sudden, and seemingly inexplicable, death of a child is the hardest thing that any parent will ever go through. The grief is unimaginable, and the pain may never go away.

Every family grieves differently. For some parents, numbed by shock, all emotional color seems drained from the world. Other mothers and fathers find themselves filled with the most intense feelings they have ever experienced. But soon after an infant’s untimely death, painful questions begin to surface. What happened? Why our family? Could anything have been done?

These are the questions that our birth injury malpractice lawyers strive to answer every day. If your child’s tragic death was the result of medical negligence – a careless mistake made by a healthcare professional – you have every right to file a wrongful death lawsuit.

What Is Wrongful Death?

Every death is tragic, especially the death of a young child, but not every death is considered a wrongful death under the law. Only infant deaths caused, or likely caused, by the negligence of another person are adequate grounds for an infant wrongful death lawsuit.

In most cases, wrongful death lawsuits brought on behalf of fetuses, infants or children are filed against obstetricians, nurses, midwives or hospitals – healthcare providers intimately involved in the process of labor and delivery.

Infant Wrongful Death Lawsuits

In medical malpractice cases, the concept of negligence is founded on the principle that doctors, nurses and midwives have a duty to provide adequate medical care to their patients. When healthcare professionals violate that duty, they can be held liable for negligence in a court of law.


Negligence: Violating The Standard Of Care

The crux of the issue is how we define adequate medical care. To do so, malpractice lawyers turn to medical experts for guidance. Consulting respected medical professionals, an attorney will develop a detailed understanding of the “standard of care” – the steps and procedures that should have been followed under the given circumstances. The next task is identifying ways in which a family’s healthcare provider violated the standard of care, leading to a child’s death.

In a sense, malpractice lawsuits compare the actions of the health care professionals who attended a child’s birth to those that average, reasonable and competent health care professionals would have taken under similar circumstances. We’re not talking about ideal obstetricians, just reasonably competent and skilled ones; doctors who didn’t make grievous errors, or fail to order necessary tests.

The primary question in an infant wrongful death lawsuit will be: “could a reasonably skilled and competent doctor have prevented the child’s death, or was the death truly unavoidable?”

Who Can Sue For Wrongful Death Of A Child?

In most states, wrongful death lawsuits involving children can only be filed by the parents of that child.

Did Medical Negligence Lead To Your Child’s Death?

Sometimes, newborns die after sustaining birth injuries during the labor or delivery process. In other cases, a dangerous risk factor that ultimately led to a baby’s death was missed or improperly managed by medical staff. Still more infant deaths are allowed to occur when serious newborn conditions, like jaundice, go without proper treatment.

Some wrongful death medical malpractice lawsuits, though, are filed long after a child’s birth. The effects of many birth injuries, including oxygen deprivation, only become apparent months – or even years – after a child is born. But that doesn’t mean those same injuries won’t prove fatal eventually, and many parents may be able to file wrongful death lawsuits on behalf of children who passed away as toddlers.

In any event, the question will always be whether or not the child’s death could have been prevented with reasonable, appropriate medical care.

Fatal Birth Injury Malpractice

Infants can be deprived of oxygen, leading to brain damage and death. In these cases of birth asphyxia, it’s often determined after the fact that a child’s death could have been prevented – if only the birth team had stepped in sooner, or used more care during the delivery.

Proving that a lapse in medical care – an error or failure to intervene appropriately – led directly to a child’s injuries and resultant death is crucial to any lawsuit involving the wrongful death of a baby.

Traumatic Injuries

Delivery can be difficult, and lengthy childbirths often put mothers and babies at risk of injury. Under these circumstances, many doctors choose to use birth-assistive technologies, like forceps or vacuum extractors, to help an infant through the birth canal. While the use of these tools is often reasonable, and sometimes medically necessary, they are delicate instruments that pose their own risks to the child’s health. Traumatic injuries are not uncommon and, in rare cases, can be fatal.

Medication Errors

Shockingly, medication errors are a leading cause of infant death. In fact, researchers at Stanford University say that neonates, infants and children are the patients who are most vulnerable when it comes to inappropriately prescribed pharmaceutical drugs. Careless medication errors, often the result of simple human mistakes, can be disastrous.

Stillbirth & Fetal Death

Hard as this may be to believe, some states require that a child be born alive, and then die after delivery, for a wrongful death lawsuit to be filed on their behalf. These requirements, which vary by state, can limit the legal rights of families who lost a fetus – even if the unborn child’s death was obviously caused by a doctor’s careless medical error.

This restriction isn’t true of every state, though, and it’s extremely important to review your case, along with the relevant state laws, with an experienced birth injury attorney.

In some jurisdictions, families are allowed to sue on behalf of children who died before birth, although a smaller subset of states will limit eligible cases to those in which the fetus had reached viability at the time of death.

Fetal Viability

Fetal viability refers to the ability of an unborn child to survive outside the mother’s womb after birth, when supported by current medical standards and technologies. There’s no strict medical consensus on when a fetus becomes viable, and since the idea of fetal viability includes technological assistance, the time at which a fetus can be considered viable changes along with medical innovations.

For the purposes of law, the US Supreme Court has provided the legal community with a definition of the concept. According to the Court’s 1973 decision in Roe v. Wade, fetal viability is:

“the interim point at which the fetus becomes

[…] potentially able to live outside the mother’s womb, albeit with artificial aid”

Some states leave it up to doctors to decide whether or not a fetus should be considered viable. Other states require physicians to perform a series of tests to confirm fetal viability, and then have other doctors look over the test results for a second opinion.

How Can A Birth Injury Wrongful Death Lawsuit Help?

Filing a lawsuit is not an easy decision. That’s especially true after the loss of a child, when parents are often consumed by grief and facing each passing day can seem unbearable. More to the point, pursuing legal action – no matter how certain you are of a doctor’s negligence – can only revive the painful memory of your child’s death.

But along with this pain comes the insult of very real financial hardships.

Wrongful Death Damages

After a child’s death, many families face a host of rising expenses, including the cost of medical care that was performed during their baby’s delivery. If a birth team’s negligence led to your child’s death, these are expenses you shouldn’t have to cover. Nor should you be forced to pay for your child’s funeral and burial. These unexpected financial losses should be covered by the parties responsible for your child’s death.

Grieving parents often benefit from emotional counseling. Filing a wrongful death lawsuit gives you the opportunity to secure compensation to cover these therapies, along with the emotional toll that your child’s death has taken. For these psychological and emotional losses, some states allow parents to claim “non-economic” damages, like:

  • loss of potential love and companionship
  • emotional trauma and grief

If medical evidence shows that your child suffered any pain before their death, additional damages may be available. Compensation may also be available if you were forced to miss work, either caring for your child before their death or planning and attending their funeral.

Punitive damages are another possibility. In cases of extreme recklessness, the court may award families additional damages as a way of punishing the reckless party. That may seem like a small measure of justice, but it can really help.

Compensation Is Limited In Some States

Some states make the process of filing an infant wrongful death lawsuit extremely difficult.

In every state, parents will have to show the court that specific losses were sustained as the result of a child’s death. The very purpose of a malpractice lawsuit, after all, is to secure financial damages – and the court needs to know what those financial damages would look like.

But only some states recognize emotional and individual losses – the very real consequences of an infant’s wrongful death – as legitimate legal claims. Other states only allow families to claim financial losses, like the cost of a baby’s funeral. For some families, the cost of litigation may be prohibitive, given this restriction to purely monetary damages.

Is There A Wrongful Death Statute Of Limitations?

After a child’s death, the prospect of turning around and filing suit may seem unthinkable. Pursuing a lawsuit is your decision, one that should only be made when you are ready. Our medical malpractice attorneys are ready when you’re ready.

But it’s important to note that every lawsuit, including wrongful death lawsuits, are governed by strict time limits. These “statutes of limitations” vary by state, although most state laws provide families between two and three years after the date of a child’s death to file a lawsuit. Choose to pursue legal action after the relevant statute of limitations has run out and you may have already lost the right to file suit altogether.