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Wrongful Death of an Infant Due to Medical Malpractice

By October 1, 2015 No Comments

Pregnant WomanParents Love Their Babies Long Before Delivery

When parents are expecting a baby, they often spend many months getting to know their child long before it is even born.  A friend may host a baby shower for them, expectant parents often attend child birth classes, prepare a nursery, and sing or talk to their unborn child.  Many women take pictures of their growing bellies every month or trimester and hang sonograms on the fridge of office cubicle in anticipation of their baby’s arrival.  Moments like these are precious and filled with joyful anticipation of they day when they will finally get to see and hold their new baby.  Parents-to-be often spend considerable time with their babies in utero so when something goes wrong during the delivery process that results in a stillbirth, the loss is undeniably real and extremely painful.

Each year in the United States 6.2 stillbirths occur for every 1,000 live births, and although that may seem like a small percentage, numbers do not matter when it is your child who was lost — especially if the loss was due to medical negligence or malpractice.  Sometimes, there are unavoidable problems that result in a stillbirth and nothing your doctor could have done would have made a difference.  However, if you lost your child due to carelessness or mistakes made by those you entrusted with your pregnancy and delivery, you still may be able to file a medical malpractice civil suit.

When Wrongful Death is Caused by Medical Malpractice

Unfortunately, California law does not allow wrongful death claims for the loss of an unborn child — neither an embryo or fetus has any rights under California law.  A baby has rights only when it is considered legally alive at birth.   Additionally, California law also does not grant rights to the mother to a wrongful death claim if her unborn child is killed.  While California civil code does allow legal liability for fetuses, California wrongful death statutes do not allow the claim.  However, if medical negligence / medical malpractice resulted in a stillbirth you may be able to file a  medical malpractice claim.


Don’t take the reassurances of doctors, hospitals, or even insurance companies at face value — if you suspect that your the death of your baby was caused by medical malpractice or negligence, it is important to speak with an experienced attorney whose only interest is in protecting your rights.  We work hard to settle cases fairly, but when insurance companies don’t play fair, our attorneys are experienced trial lawyers and can provide you with outstanding and effective legal representation and take your case to court.

Maternal Risks and Stillbirth

Stillbirth, sometimes also called “fetal death” or “fetal demise” can happen for a number of reasons.  Some losses are preventable, but others are not.  For example, women who have high-risk pregnancies may require different care than other women.  Your ob/gyn should identify these risk factors as early in the pregnancy as possible to reduce those risks.  Risk factors include:

  • Women who are overweight
  • Women 40 years of age and older
  • Women with AB blood type
  • Women carrying multiples
  • Women with a history of stillbirth
  • Women with any preexisting medical disorders as well as those who develop gestational diabetes or other health issues during the course of their pregnancy
  • A woman’s lifestyle if she smokes, drinks, or has a drug problem.

Studies show that in that majority of stillbirths the cause of death can be determined, but most parents, reeling from their unexpected loss do not pursue an autopsy, or accept the reassurances of a hospital and doctor that their loss was “just one of those things.”  Medical malpractice cases are complicated, especially those involving the death of a fetus so it is important that you speak to an attorney who has experience in dealing with birth injuries.

Talk to Us for Free

We understand that no amount of financial compensation can remedy the loss of a child, however, you may be entitled to compensation and hold those responsible accountable for their actions — something that may help grieving parents find closure as they try to piece their lives back together.  That is just one of the many reasons why we encourage you to explore all your options.

Contact us for a free initial consultation.  We can help you understand your rights and if you have a case, and if your loss was due to medical malpractice we can help you hold negligent health care providers responsible for your loss.