The answer to the question: “do wrongful death lawsuits still apply to stillbirth cases?” is a state by state issue.
It is going to vary in each state, will vary based on the wrongful death statutes, and will depend on other surrounding circumstances, including negligence, or improper handling by the doctor/hospital. In order to understand the case, whether you have a viable claim, and what has to be proven, it is best to consult a legal team, and to work with a lawyer, in order to properly file the claim, and in order to ensure damages will be received, if your state does have this provision in the state’s law.
Intentional or Negligent Act –
In most state statutes that have a provision for stillbirth cases, negligent act by the defendant must have occurred. Not every case will prove the medical provider was at fault; there has to be at least some proof that they acted negligently, didn’t act in a timely fashion, didn’t inform the mother of potential problems, or other fault must be found. In a state that requires some form of negligence, if there is nothing that the medical professional could have done, or if they did all they could and were in no way at fault, you will not have a claim against them for a wrongful death suit.
Fetus Test –
Although most states do have a provision that the stillbirth fetus was at one point in time “alive” in the mother’s womb, there are a handful of states that do not provide damages for a stillbirth case. In these states, the fetus is not considered a “person” under the state’s provision and law. There are still other viable claims a family may have, including emotional distress if the stillbirth does take place. Working with a legal professional will not only give you insight in to the state’s laws, but also provide you an alternate avenue to file a lawsuit, in the event the state does not have a provision in place for the stillbirth case.
Viable/Moving In The Womb –
Another provision that is in place with most state laws, is that the fetus must have been moving or viable, at one point in time or another, in the mother’s womb, in order for a family to be able to sue for damages, in a stillbirth case. Viable will come to mean that the fetus would be able to survive outside of the womb and with no additional medical aid; in most cases medical professionals would agree that this would be anywhere after the point of 24 weeks of pregnancy. If this is not present in the situation, it might not allow for a family to sue a doctor or hospital. If the fetus would never have been able to survive outside of the womb, then it is likely that the hospital would not be found to be at fault. The same is true if the fetus would only be able to survive if they had medical assistance (breathing tubes, etc). So, the family must be able to prove this factor, in the states where the stillbirth cases are allowed to be filed, as a wrongful death suit.
Hiring A Wrongful Death Lawsuit Lawyer
Not every case is as clear cut as you would hope for it to be. And, even in cases where you feel the doctor or hospital might have been at fault, there may not be much that could have been done, in order to save the fetus. These are just a few of the factors you are going to have to prove, if you do file for a wrongful death claim, if it is a claim that can be filed in your state.
If you are not aware of state laws, if you do not know the factors of the case, or if you would like to find out whether or not you have a viable claim, it is best to meet with a legal team, to understand what type of claims you can file. And, even if you live in a state where the fetus test applies, you will have other potential claims, including the emotional distress, which a lawyer will inform you about, and will help you file against the medical professional, if a stillbirth occurs.
Contact us today at (800)-200-7752 or fill out our contact form for a free initial consultation.