Posts Tagged ‘fetal death’

The death of a baby – the economic realities

Monday, June 6th, 2011

I recently wrote a blog about the grief that parents suffer when they lose an unborn child. At the risk of sounding crass, I want to now discuss the economics of lawsuits involving the death of an unborn child. For those contemplating taking legal action for the loss of their child, I hope this provides some useful information for you to consider.

Maryland courts have carved out specific rules for when an unborn child is considered a person capable of recovering damages in the event of death. The primary rule is that if a baby is actually born alive, no matter at what gestational age, that baby is considered a person with legal rights. So, if a 20-week baby is born alive and then dies one minute later, that baby is considered a “person,” and a lawsuit can be filed on behalf of the estate for that baby’s pain and suffering, otherwise known as a Survival Action.

(This leads to an interesting question – does a fetus feel pain? See Related Links below). The parents of the unborn child can also file what is known as a Wrongful Death action for their own economic and non-economic damages resulting from the death of their baby, primarily their grief and emotional loss over the death of their child. Survival actions and Wrongful Death actions are two separate claims, although they are usually pursued in the same lawsuit.

When a baby dies before birth, however, another question has to be asked: was the baby viable or not? Viability means that a baby is able to live outside the womb, even though he or she may require serious medical intervention. The current thinking is that babies are viable at around 22 weeks. The courts have made the rule that if an unborn child dies before the age of viability, that baby is not yet a “person” and has no legal rights. There can be no Survival Action and there can be no Wrongful Death action. If, however, the baby has reached the age of viability, then the baby is considered “a person” with legal rights, even if the baby was never born alive. Confusing? Yes it is.

The Maryland Courts were following the ruling in Roe v. Wade that a mother had a constitutional right to abort a non-viable baby. Therefore, a non-viable baby was not legally considered a person. If the baby was not a person, then no lawsuit could be filed on behalf of the estate of that baby, nor could the parents file a wrongful death action. So in order for a Survival Action or a Wrongful Death action to lie for an unborn baby, that baby has to have reached at least 22 weeks of gestation.

To make things even more confusing, the Maryland courts have carved out an exception to the above rules. Let’s consider the example of a non-viable baby (i.e., less than 22 weeks gestation) who dies before birth as a result of someone else’s negligence that injures the mother.

A common situation occurs when the mother (let’s say she’s 8 weeks pregnant) is injured in a car accident and suffers a miscarriage as a result. Looking at the above rules, one would think that no claim is allowed. However, the courts have said not so fast. In this circumstance, while the mother cannot recover for the grief of losing her child (because the child is non-viable and, therefore, not legally a person), she can recover for similar damages, including:

  • The depression, anguish, and grief caused by the termination of the pregnancy;
  • The manner in which the pregnancy was terminated;
  • Having to carry a baby which was killed by someone else’s tortious conduct; and
  • Having to witness the stillborn child or the fetal tissue that was to be her child.

I realize this itemization of damages sounds awfully close to the damages permitted in a Wrongful Death action – the very damages that are not allowed in the case of a non-viable baby. It is confusing, to say the least. The courts are trying to find a way to compensate a woman who is injured and loses her non-viable baby as a result of someone else’s negligence, while remaining true to prior precedent in this state that there is no Wrongful Death action allowed in the case of a non-viable baby.

Lastly, keep in mind that Maryland’s cap on non-economic damages applies to cases involving the death of an unborn baby. Economic damages (medical bills, lost wages) are usually very small in such cases. There are no lost wages because we’re talking about a baby, and the medical bills are usually small.

The value of these cases is in the emotional pain and suffering of the parents, and the physical pain and suffering of the baby (assuming a viable baby). Under Maryland law, the maximum allowable recovery for such a claim is $868,750 in a medical negligence action (assuming Mom and Dad both file a wrongful death action).

Under the hypothetical of the mother seeking recovery for the loss of a non-viable baby, the maximum allowable recovery is $695,000 if the allegation is medical negligence, and $755,000 if the allegation is non-medical negligence. (The Maryland Legislature has for some strange reason imposed different caps depending on whether the negligence is medical or non-medical, e.g., a car accident).

As for the question of whether an unborn child feels pain, please click on the link below for a blog by Brian Nash on this very issue.

Related Nash and Associates Links

Does a fetus feel pain

Hysteria over malpractice “crisis”

 

 

 

The Grief of Losing an Unborn Child

Wednesday, June 1st, 2011

Image from HopeforParents.org

Fetal Death In Utero. It sounds so clinical, so devoid of meaning. Maybe that is by design. Medical terms have a way of masking the real human suffering that is being described.

Adenocarcinoma instead of cancer. Cerebral hemorrhage instead of stroke…and “fetal death in utero” instead of “losing an unborn child.” The medical terms are necessary, but they don’t capture the essence of the diagnosis. As one woman told me, “I didn’t lose my fetus. I lost my baby.”

For any parent, the loss of a child is the most agonizing experience imaginable. As the father of two, I can’t even imagine being told that your child has died. I can’t imagine the life-long grief that follows. I almost decided not to write about this topic for that very reason – I didn’t know the pain of losing a child so who was I to write on it? But other times I’ve waded into topics despite a lack of personal involvement because the issue has touched those whom I care about. For example, I’m not a parent of a special needs child, but I’ve written on that topic because I am close to people who are raising special needs children. Their experiences deserve to be shared.  The same is true here.

For parents who have lost an unborn child, the sense of grief is no different than if the child had been born and then died. Unfortunately, our society seems less sympathetic to the loss because there is no infant that we have seen and gotten to know. We all recognize the agony of losing an older child. Even if we haven’t experienced it ourselves, we can at least try to understand how sickeningly awful it must be. We can then offer our support and love and condolences to those who have experienced it. With an unborn child, however, it’s different. We have a tendency to minimize the grief associated with losing an unborn child, as if the fact that the child wasn’t yet born makes him or her less real. Even medical providers are guilty of this. I’ve had women tell me that their doctors tend to treat miscarriage or stillbirth as a medical condition, not the loss of a loved one. For the parents of such children, however, the loss is deep and real and long-lasting.

Donnica Moore, M.D., an Ob/Gyn and the author of a book entitled “Women’s Health for Life,” summed it up well when interviewed by the New York Times:

Couples can feel there’s no socially accepted way to grieve. If you lose a family member, people know how to do that, they know how to support you and grieve with you. But this is new territory for a lot of us. It’s a tragedy for people who have gone through it that might not be on the radar of people who have not.

I’ve recently had the pleasure (strange word, I know, given the circumstances) of representing two wonderful families who lost children. One couple lost their 9-year-old son who died of a correctible heart condition that his pediatrician failed to detect, and the other couple lost their unborn daughter when the mother was 37 weeks pregnant after being sent home from the hospital where she had gone complaining of decreased fetal movement. It’s easy to see the grief for the first couple. One day they have a little boy going to school, playing, doing homework, and the next day he’s gone. With the second couple, it’s harder to see the grief, but it’s there. I’ll share their story briefly.

This was the first child for Michelle (not her real name) and her husband. They had already decorated the nursery and picked out a name. One evening (believe it or not, Michelle had just attended a baby shower earlier in the day) she felt that the baby wasn’t moving as much as usual and called her doctor’s office. They told her to go to the hospital, which she did. At the hospital, she and her baby were evaluated and told that everything was OK. She was told to go home and keep her regularly scheduled appointment the next day. When she went to her doctor the next morning, however, the doctor could not find a heartbeat. Her daughter, unfortunately, was gone. To make things even worse, Michelle then had to carry her deceased daughter inside her for another full day before she gave birth.

Michelle did her best to move on with her life. She continued to work. She and her husband had another child. But for the entire time I represented her (to its credit, the hospital approached us about resolving the case early on) there was not a single time I talked to her that she did not start to cry in discussing her first baby – the daughter who should now be three years old. She still grieves for the loss of her daughter, wonders why it happened, wonders what her daughter went through in those final moments. She asks herself whether she did anything wrong, whether she should have been more forceful that night in the hospital. These questions don’t go away for her. They’re the same questions that any mother would ask after losing her child – whether it was an unborn child or an older child.

We all need to do a better job of recognizing that the pain of losing an unborn child – whether by miscarriage or stillbirth – is deep and long-lasting. If you know someone who has lost an unborn child, don’t shy away from him or her. A simple and genuine “I’m sorry for your loss” is a good starter. Be there to offer support and talk just like you would if the child were older. Don’t expect it to go away in a matter of weeks, and don’t assume that a subsequent pregnancy somehow erases the pain of losing the previous child; it doesn’t. Also, try to avoid clichés, e.g., “everything happens for a reason,” “I’m sure you’ll be able to have more kids.” While such sayings are meant well, clichés tend to minimize the degree of loss. If you don’t know what to say, it’s perfectly fine to say, “I don’t know what to say.”

If you yourself have lost an unborn child, you need to treat this loss like you would the death of a loved one. It is a long, slow, painful process that not everyone will fully understand. That can add to the sense of loss because you may get the feeling that people are expecting you to be over it already. Don’t let their artificial time-tables dictate your own personal grieving. You may also experience feelings of guilt, asking yourself if you did something during your pregnancy that caused this (in almost every case, the answer to that question is a resounding no). You may feel resentful toward other parents or children, or find it difficult to be around children, especially those who are the same age as your child would be. You may wonder if you will be able to have another baby. All of these feelings are completely normal, but they will take time to resolve.

Additional Links

Here are some good links to learn more about the grieving process for unborn children.

National Share

AmericanPregnancy.org

Related Nash and Associates Links

Pregnancy-related gingivitis and prematurity