Your family deserves the truth. What really happened in the delivery room? Why was your child injured, and could their fatal injuries have been prevented by better medical care? If investigations reveal that your child’s death was caused by medical malpractice, your family has the right to file a wrongful death lawsuit.
Wrongful Death & Malpractice
While every death is a tragedy, not every death will rise to the level of a wrongful death in court. Under the law, a wrongful death is one caused by the negligence of someone else.
Doctors, nurses and midwives have a basic obligation: provide adequate care to the patients in their charge. We all agree that these highly-trained medical professionals should be held to a standard. There are right and wrong ways, after all, to manage pregnancy, labor and delivery. When medical professionals fail to uphold their duty – making mistakes that cause mothers and children harm – they can be held accountable for this negligence in a wrongful death lawsuit.
This is the fundamental concept behind every medical malpractice lawsuit, whether or not the case at hand involves an infant’s death.
What Is A Standard Of Care?
But the heart of the matter is more complex.
While every medical professional should be held to a standard of professional competence, this standard can change depending on specific circumstances.
We wouldn’t expect an obstetrician to provide the same type of care for cases of shoulder dystocia, a complication of delivery, as they would in diagnosing maternal hypotension, or low blood pressure. These are drastically different situations, and doctors must be sensitive to their important differences. More fundamentally, each medical situation will have different implications for treatment; each situation will require a different “standard of care.”
The essential question, of course, is how should the birth team in your child’s labor and delivery have acted? What “standard of care” should have been followed? Only after answering these primary questions can an infant wrongful death attorney begin to understand how your birth team acted negligently.
Testimony Of Medical Experts
Defining a “standard of care” is quite possibly the most important step in building a viable medical malpractice lawsuit. To tackle this crucial task, experienced medical negligence attorneys will rely on the expert opinions of independent medical professionals.
Working closely with these distinguished doctors and nurses, a lawyer will work up a precise and detailed model of the standard of care that should have been followed during your pregnancy, labor and delivery. After developing an appropriate standard of care, the medical expert will review birth records and other documents to identify moments when your own birth team deviated from that standard of care, identifying inappropriate actions – or failures to act – that could have contributed to your child’s tragic death.
In every case, the basic question is whether or not a child’s death was truly avoidable under the circumstances. If not – if a reasonably skilled and competent medical professional could have prevented tragedy – parents may be entitled to pursue financial compensation from the parties responsible for their child’s untimely passing.
Was Our Child’s Death Caused By Medical Malpractice?
Without conducting a thorough investigation into the event surrounding your child’s birth, we just can’t answer that question. Some infant deaths, while tragic, are truly unavoidable.
Medical negligence is rarely obvious. Labor and delivery, after all, are complex medical situations. Experts can differ on the appropriate way of handling an obstetric emergency. Despite these reasonable debates on medical practice, a small – but intolerable – number of children will die every year due to a doctor’s mistake.
Failures To Diagnose Or Treat
There are numerous maternal conditions, like preeclampsia, that can place an unborn child at risk of suffering fatal injuries. When these conditions are missed – despite relevant signs and symptoms – or inappropriately managed by an obstetrician or nurse, the result can be the infant’s death.
Many newborn infants develop serious medical conditions shortly after birth. Jaundice is a notable example. While the condition is fairly common, few parents are aware that jaundice can quickly progress to become kernicterus when left untreated. Kernicterus is a potentially-fatal medical condition in infants, one that can cause widespread brain damage, permanent disability and death. After properly diagnosing a severe case of jaundice, doctors must act swiftly to prescribe the appropriate treatments in time.
Writing in the Journal of Pediatric Pharmacology and Therapeutics, doctors from Stanford University say that pediatric patients – including newborns – are “the most vulnerable to serious and sometimes fatal” medication errors.
Careless errors in medicating patients can have disastrous consequences. Often, mothers are prescribed too much of a necessary drug, leading to fetal injury. The opposite is also possible, and some women will be prescribed a smaller dosage than is required to prevent tragedy. Sometimes, the incorrect drug is prescribed altogether, due to a nurse’s error or a doctor’s illegible handwriting.
Birth Asphyxia & Traumatic Birth Injuries
Labor and delivery are complex physical processes. During lengthy, difficult deliveries, many obstetricians choose to intervene themselves, attempting to ease a child through the birth canal either manually or with the help of birth-assistive technologies. The risk of a serious birth injury is high, especially when the birth team fails to use proper care in handling the infant.
Newborns are frequently deprived of oxygen during labor and delivery, suffering brain damage that can lead to death. In other cases, a doctor’s inexpert use of forceps or vacuum extraction inflicts traumatic birth injuries to a newborn’s head.
Can We Sue For Fetal Death?
During pregnancy, labor and delivery, a birth team’s obligation to treat patients appropriately extends to cover both mothers and their children. But state laws differ on whether or not families can bring wrongful death lawsuits in relation to the death of fetuses.
In some states, the court system requires that an infant be delivered alive, and then die sometime after childbirth, to make a wrongful death lawsuit possible. Thus some parents will be prevented from filing suit on behalf of an unborn child – even if the fetus’ death was clearly caused by medical malpractice.
As we mentioned, these restrictions vary from state to state, and we urge families to review their own potential cases with experienced attorneys who have knowledge of the relevant state laws.
When Is A Fetus Viable?
There are some states in which parents can file a wrongful death lawsuit involving fetal death, but only if the fetus had reached viability at the time of death.
Loosely-defined, fetal viability refers to the point at which a fetus is able to survive outside the mother’s womb, with the aid of current medical technologies.
There’s no universal medical opinion, however, on when in fetal development an unborn child should be considered viable. Also notable is that the concept includes technological life-support aids, so fetal viability may change depending upon the pace of medical innovation.
Should We File An Infant Wrongful Death Lawsuit?
We understand that choosing to file a lawsuit is a major decision, one that can become even more unthinkable after a child’s death. Many parents are overcome with grief, or slide into long periods of depression and hopelessness.
But many of these parents also face significant financial difficulties, as they struggle to provide for their own emotional needs. Most are still expected to reimburse medical professionals for the cost of their child’s delivery.
If a healthcare professional’s negligence led to the death of your infant, we don’t think you should have to pay for these expenses. You shouldn’t have to cover the cost of your child’s funeral, either.
Damages In A Wrongful Death Lawsuit
Pursuing a wrongful death lawsuit can provide your family with the funds to meet these financial challenges head-on. There is no way to bring back your child, but a successful medical malpractice claim can lighten the burden. In many infant wrongful death lawsuits, parents are able to secure compensation for:
- burial and funeral expenses, along with lost wages if you were forced to take time off work preparing for your child’s services
- emotional counseling
- loss of potential love and companionship
- pain and suffering, including your own emotional trauma
In some cases, families can even recover damages for the pain that an infant experienced prior to their untimely death. While less common, punitive damages are also a possibility. These damages, paid to families, are meant to punish particularly reckless healthcare professionals.
Note that only some states recognize damages for emotional losses. Other states will only allow a family to claim damages for concrete financial losses, like the cost of a child’s burial.
How Long Does Our Family Have?
Like every civil lawsuit, wrongful death lawsuits are governed by “statutes of limitation,” laws that limit the amount of time parents and injured people have to file suit. Most states give families somewhere between two and three years after the death of a child to file a wrongful death claim, but the law in your state may be very different. It’s extremely important to speak with an attorney immediately and ensure that your family doesn’t lose the right to pursue a claim.
After the death of a child, the idea of pursuing a lawsuit can seem unimaginable. This is your decision, and only you can make it. But when you’re ready, our birth injury attorneys will be here to help.