Childbirth Malpractice: Stillbirth Lawsuits

A look at a health care provider's potential liability when a baby is stillborn. Here's how it works.


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Childbirth is a wonderful event when all goes well. It can also be risky from a medical standpoint. A significant number of medical malpractice cases arise out of childbirth procedures, partly because minor mistakes can end up being catastrophic.

One University of North Carolina study found that 24% of OB/GYN doctors in Massachusetts paid malpractice settlements over a 10 year period, while 15% of general surgeons and 4% of internal medicine specialists made similar payments during the same period.

The most serious consequence of medical malpractice during childbirth is that the baby will be stillborn. This article looks at stillbirth and key legal issues in a medical malpractice case involving errors during the childbirth process.  

Medical Definition of Stillbirth

"Stillbirth" is a term for the delivery of a fetus that shows no signs of life. Other terms for stillbirth include "fetal death" and "fetal demise." It's important to distinguish stillbirths from miscarriages, which occur earlier in gestation. There is no internationally accepted standard for classifying failed pregnancies. The majority of states in the U. S. use the twentieth week of gestation as the threshold for distinguishing a stillbirth from a miscarriage. Other countries vary from week 16 to week 28.

In the United States, 6.2 stillbirths occur for every 1,000 live births. The rate is higher in low income countries (9 to 34/1,000), but the average rate in high income countries is (3.1/1,000).

Cause and Prevention of Stillbirth

In a 2008 study, the possible or probable cause of death in stillbirth cases could be determined in 76% of cases. The most common causes were:

  • obstetric complications (eg, abruption, multiple gestation, preterm birth) (29%)
  • placental disease (23%)
  • fetal genetic/structural abnormalities (14%)
  • maternal or fetal infection (13%)
  • umbilical cord abnormalities (10%)
  • hypertensive disorders (9%), and
  • other maternal medical conditions (8%).

Stillbirths are sometimes preventable if a doctor can identify risk factors early and control for them. Some of the relevant risk factors include:

  • older maternal age
  • obesity
  • multiple gestation
  • concurrent medical disorders
  • smoking, and
  • pregnancy complications.

Stillbirth and Medical Malpractice Cases

A doctor’s mistake, including failure to control for a risk factor, may be grounds for a medical malpractice lawsuit if the error results in a stillbirth. Most medical malpractice lawsuits revolve around two critical elements:

Proving Negligence

A stillbirth is not always the result of negligence. A doctor can do everything right, and a pregnancy may still result in a stillbirth. A doctor will only be said to have acted negligently if they failed to provide treatment that met the appropriate "medical standard of care" under the circumstances. The standard of care varies by case. In many stillbirth cases, the standard of care might require a doctor to:

  • provide clean and safe facilities to prevent infection
  • identify risks associated with a previously failed pregnancy
  • identify structural abnormalities prior to birth
  • identify umbilical cord abnormalities prior to birth, or
  • diagnose a hypertensive disorder prior to birth.

In the vast majority of cases, establishing the standard of care requires testimony from an expert medical witness. The patient (usually through an attorney) consults an OB/GYN expert who offers an opinion as to the quality of care that most doctors would have provided in similar circumstances.

Breach of the Standard of Care. The next step is to prove exactly how the defendant doctor fell short of meeting the standard of care. For example, if the standard of care required the doctor to recommend delivery by cesarean section as a result of certain easily identifiable risks, failure to do so would likely be sufficient grounds for a medical malpractice case if the baby was harmed. The expert medical witness usually provides detailed testimony on this element as well.

Showing Harm Caused by the Negligence

In order to win a medical malpractice lawsuit, the patient must prove that the doctor’s negligence caused foreseeable harm. This harm can take many forms, including:

  • pain and suffering
  • cost of medical bills, and
  • emotional harm.

Different damages are available in different states. For example, in 2004, the state of New York changed its laws to allow a mother to collect pain and suffering damages as the result of a stillbirth. Prior to 2004, the state did not allow compensation for emotional damages, which are probably the most significant form of damages in stillbirth cases. In states that allow damages for emotional harm in stillbirth cases, the mother must still prove that her emotional suffering was the result of the stillbirth.

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