Be Aware of These Wrongful Death Laws on Stillbirth Cases

All states cover wrongful death statutes that permit a plaintiff to receive a monetary recovery for a close relative’s death. Also, some states have wrongful death laws that provide parents with the right to get damages for a stillborn infant’s death.

This article talks about how wrongful death cases for stillborn infants work at large.

Medical malpractice

Wrongful Death Claim

A claim for wrongful death is based according to a statute, a few versions of which remain in all states, which allows the relatives or heirs of a deceased individual to receive compensation when the death resulting from the defendant’s negligent or wrongful act.

Before making the survivor and wrongful death statutes in the 1800s, the heirs and family of an individual killed by another are deliberate or negligent act couldn’t sue for damages as the tort (legal claim) could only be filed by the harmed person – essentially, the claim expired once the plaintiff died.

The survivor and wrongful death laws were made by state legislatures to pay close heirs and family members for their family member’s death, including compensation for lost monetary support, the pain and suffering of the decedent before death, funeral costs and other damages based on the case context and the statute.

The remedies offered by wrongful death laws are only accessible if the defendant negligently or intentionally caused the death.

In the case of a stillborn infant, it isn’t always the medical provider’s fault. Somehow the provider must’ve been liable for the stillbirth. Keep in mind that numerous states don’t permit medical malpractice claims for neglectful stillbirth, but do apply such statute to deliberately or negligently caused stillbirths.

And in those states, usually, the plaintiff will have to follow all the litigation procedures of a medical malpractice claim to establish liability prior to the wrongful death statute can be applied.

Now, if a defendant caused the stillbirth beyond the medical setting, for instance, a car crash, then that defendant should actually be proven responsible for negligence prior to the wrongful death lawyer will be applied.

Medical Malpractice
Medical Malpractice

Not All States Utilize Wrongful Death Laws to Stillborn Fetuses

Most states make use of the wrongful death law to stillborn fetuses, yet many don’t. And in those states that don’t, the basis under the statute is that the fetus isn’t a “person.” Loads of those similar states, on the other hand, do permit other kinds of cases based according to a stillbirth, for instance, negligent infliction of distress.

Many of those similar states, on the other hand, do permit other kinds of cases based according to a stillbirth, for instance, negligent infliction of distress.

In Some States, The Fetus Must’ve Been Viable (Moving in the Womb)

In most states that use the wrongful death law to stillborn fetuses, the fetus must’ve been viable the moment that caused the stillbirth. The term “viable” essentially means the infant may survive out of the womb by itself, or with medical assistance. At present, the earliest stage at which a fetus is viable is approximately 24 weeks. If the careless act that ultimately caused the stillbirth was done before viability, the wrongful death law wouldn’t apply.

At present, the earliest stage at which a fetus is viable is approximately 24 weeks. If the careless act that ultimately caused the stillbirth was done before viability, the wrongful death law wouldn’t apply.

The Elements in a Malpractice Case

A medical malpractice claim involves several different elements. We will look into such elements in this post.

The Plaintiff

The plaintiff is the patient, an authorized person who follows up on behalf of the patient, or if the patient passed away, the administrator/executor of the estate of the patient. In legal terms, a plaintiff is an individual who brings a lawsuit against another within a court, the individual who creates the suit, or the individual who’s suing.

The defendant is the party being sued. In a malpractice case, it is the healthcare provider, which could be the nurse, doctor, therapist, etc. Even those individuals who follow orders could be legally responsible for neglectful acts.

The prevailing party is the one who succeeds in the lawsuit; it could be the defendant or plaintiff. If the defendant triumphs in the case, then the plaintiff won’t receive compensation.

Medical Malpractice
Medical Malpractice
  • The losing party is the one who’s beaten in the case.
  • The fact finder is the jury or judge.

The plaintiff needs to establish that the 4 fundamentals of the negligence tort existed so as to be successful in a malpractice claim:

  • A duty was owed by the hospital or healthcare provider.
  • A duty was violated – the hospital or healthcare provider didn’t follow the standard of care
  • The violation caused an injury – the violation was closely associated with the harm or injury

Damage – the patient endured significant damage, either emotional, physical or financial (pecuniary).

As it happens in every tort case, the legal representative or the plaintiff files a case in a law court. Prior to the beginning of the trial, the plaintiff and defendant need to share data by means of discovery; this could include documents requests, depositions, as well as interrogatories.

Both parties could, if they negotiate, reconcile out of the courtroom, and the case won’t proceed to trial. If they don’t agree, the lawsuit will go to trial.

The plaintiff needs to persuasively prove the negligence of the defendant. In nearly all trials, both the plaintiff and defendant will present professionals to clarify what standard care was needed. The jury should then mull over all the proof and choose which one is the most convincing.

A decision will be provided by the jury for the party that prevails. If it’s the plaintiff, then the judge will settle on damages.

The defeated party may proceed to a new court trial. In a few courts, if the plaintiff desires a bigger settlement, then they may go for “additur” (evaluate the damages and grant a bigger amount). If the defendant is not satisfied with a huge settlement, then they may go for “remittitur” (the court reduces the sum of damages). Either party could take a petition from the verdict.

Medical malpractice

Compensatory and Punitive Damages

The plaintiff could be awarded punitive and compensatory damages.

Compensatory damages could include financial damages, which includes life care expenses, lost earning capacity, as well as medical expenses. Losses in the past and future are usually assessed.

Compensatory damages could as well include non-financial damages, which evaluate the injury itself, psychological harm, and physical harm, for instance, losing one’s legs or vision, emotional distress, and extreme pain.

Punitive damages are only granted once the defendant is responsible for willful or malicious misconduct. This form of damages is a type of punishment; payment beyond actual damages.

The results of malpractice lawsuits on health care providers in the United States are widespread and could have a deep impact on the wellbeing of the medical professional, causing stress, professional displeasure, and emotional fatigue, a study showed.

The study (published in the JACS (Journal of the American College of Surgeons) on November 2011) found that cases were independently and strongly linked with career burnout and depression of the surgeon.

The authors stated that medical professionals who had experienced a recent malpractice case were more prone to be displeased with their professions, and would perhaps recommend their kids or others to pursue a non-medical/non-surgical career. How must doctors handle complaints?

The Medical Defence Union, the UK’s top medical defense association, provided tips for UK medical professionals on dealing with complaints:

  • Investigate each complaint methodically. Converse with the person complaining regarding what distresses them, and what results they’re expecting. Have a comprehensible plan prepared, and inform the plaintiff with regards to the investigation’s time frame, and when they must look forward to a response.
  • Invite the plaintiff(s) to speak to the personnel who are caught up in the complaint. Perhaps seek the assistance of a conciliator.
  • Take this seriously. Take measures as well to ensure they don’t happen again. Make certain your response is balanced and appropriate.
  • Remaining objective is very important. If possible, the reviewer must be directly caught up in the complaint, yet shouldn’t be the individual the plaintiff has an issue with. If fitting, look for an independent medical opinion (ensure the plaintiff is contented with that)
  • Apologize, be honest and open, and acknowledge errors as well as distress caused.
  • Organize a system which assesses and take lessons from plaintiffs. Make certain the plaintiff is informed in each action you’re taking.

If you are a victim of medical malpractice, know that there are different things you need to go through before you can submit your claim to a traditional court. Getting expert advice and support to an expert attorney would help a lot.

What is Medical Malpractice Law?

Medical malpractice law administers the legal responsibility of doctors as well as other healthcare providers once they cause injury to a patient by being negligent of the services they render. Every state has its own laws and methods to dealing with these particular personal injury cases. But generally, a physician will be held responsible if his or her behavior fails to fulfill the standard of care rendered by other physicians under related circumstances.

Mistakes Characterized By Medical Malpractice

Mistakes that can be characterized as medical malpractice will normally belong to one of numerous categories. These take in a failure in diagnosing the condition of a patient, prescribing the incorrect pharmaceuticals, misreading X-rays, failing to inform a patient regarding the side effects or risks of a procedure, carrying out services without the informed consent of the patient, and making an error during childbirth or surgery.

When doctors perform carelessly, the outcome can be disastrous for the patient. It’s not shocking, then, that damages in medical malpractice lawsuits are one of the most significant among all personal injury claims. Damages may take in medical expenses, suffering and physical pain, lost wages, emotional distress, punitive damages, decrease in potential earning, compensation for disfigurement, complete or partial impairment, and death.

Expert Witnesses Are Needed in Medical Malpractice Cases


Expert witnesses portray a unique part in medical malpractice cases. A lot of the problems discussed in these cases, like whether a surgical procedure was done correctly, are too intricate for juries and judges to comprehend by themselves. This signifies that other doctors should be requested to investigate the case, make an opinion, and elucidate their findings. And for the patient, the cost of employing a professional drastically increases the expense of bringing the claim.

Numerous elected officials and public policy groups oppose big damages in medical malpractice cases. Denoted as tort reform, which objective is to pass legislation thus making it harder for injured parties to file cases, and to acquire the damage awards when they win. Proponents insist that tort reform would lessen the rate of healthcare, but the information is inconclusive, and the problem remains very controversial.