Stillbirths and Medical Malpractice: A Legal “Gap”


Worldwide, there are about 2.6 million stillbirths each year (1), 24,000 of which occur in the U.S. (2). Our rate of stillbirth is higher than that of many other developed nations. For example, it is more than double the rate in Iceland (3). This regional variation in stillbirths demonstrates that many of these deaths must be preventable with proper treatment (4).  

Indeed, the World Health Organization notes that “Half of stillbirths occur during labor, mostly to infants delivered at term and who would have been expected to survive, wherein lies the greatest tragedy” (5). These stillbirths are often caused by complications involving the umbilical cord or placenta, or maternal health conditions such as diabetes, high blood pressure, and obesity (2). Such issues also increase the risk of maternal mortality and of birth injuries, and disproportionately affect socially-disadvantaged and minority women (1, 3).Stillbirths and Medical Malpractice: A Legal "Gap"

In order to prevent stillbirths, more government funding must be allocated to data collection and evaluation, as well as providing high-quality medical care to all pregnant women. However, it is important to note that stillbirths with obvious, preventable causes occur even in facilities on the cutting edge of medicine. This can happen when hospitals do not have enough staff members available to care for all the patients requiring attention, or when medical professionals make errors such as mismanaging a high-risk pregnancy or failing to monitor for signs of fetal distress. These actions are examples of negligent behavior, and if it results in the death of a fetus (or any lasting harm to mother or baby), it constitutes medical malpractice.

After a stillbirth that results from malpractice, parents may be able to sue the responsible hospital or doctor. In addition to obtaining the funds for emotional recovery and other expenses associated with stillbirth, many parents are interested in pursuing a lawsuit in order to hold medical organizations and professionals accountable and prevent harm to other babies.

Unfortunately, these suits can be difficult to win, and the laws surrounding stillbirth may be  more complicated than those dealing with other types of medical malpractice. Here, we will discuss important cases that have shaped stillbirth malpractice law, as well as some current controversies.

More Recourse for Injury Than Stillbirth

Mothers can sue for physical harm to themselves during childbirth, and parents can sue on the behalf of a birth-injured infant. However, recourse when a baby dies is often very limited, resulting in a sort of legal “gap” wherein punishment is stricter for inflicting injury than inflicting death (6). The rationale behind this is that an injured mother or baby will require continued care and resources (children with neonatal brain injuries may have particularly extensive, lifelong needs), but a stillborn baby’s circumstances cannot be improved because they are deceased.

There is of course such a thing as a wrongful death statute, but compensation is generally restricted to a person’s beneficiaries; that is, those who would have received economic support from the deceased had they not died, and certain courts have ruled that these statutes do not apply to stillborn babies. There are two main justifications for this. First, in adult wrongful death cases, most courts use the deceased’s current income and other variables to calculate future earning potential. However, in the case of an unborn child, it is more difficult to determine how successful they would have become, or how much they would have financially contributed to their family. Additionally, most courts have rejected these claims on the grounds that a mother has the option of suing for her own physical damages.

Outside of medical malpractice, harm to an unborn baby does often result in harm to a mother. For example, if a baby is stillborn as the result of an auto accident, it is likely the mother will have also sustained some damages (and for this reason, a New York court ruled that a pregnant plaintiff could only sue for physical harm to herself after an auto accident, and not also for the death of her unborn twins). However, in stillbirth resulting from medical malpractice, mothers often sustain no independent injuries at least, not physical injuries (7).

Filling the Gap: How Stillbirth Laws Have Changed Over Time

Under what may be referred to as the “impact” rule, emotional damages are often not compensated in the absence of physical harm to the plaintiff. Ropiequet (1990) notes that “…courts traditionally have been suspicious of the bona fides of claims for purely psychological injury. Such claims are easy to make and easy to exaggerate, even more than the traditional whiplash or soft tissue injury claims in a rear end collision or slip and fall case.”

However, courts have acknowledged that severely traumatic events, such as a stillbirth, can cause very real harm to a person’s mental health. Therefore, many jurisdictions have tried to draft laws allowing recovery for stillbirths, while ensuring that spurious emotional distress claims are rejected. Attempts at striking this balance have resulted in a variety of justifications for rulings on stillbirth cases and related types of malpractice (e.g. birth injury and infant death), some logical and some bizarre (8). The following are just a few examples from cases in the state of New York:

Tobin v. Grossman, 1969: In this case, the court ruled that a mother could not receive compensation for emotional damages after her child was hit by a car and seriously injured. The justification was that fathers, grandparents, and even random bystanders could also be traumatized by this type of incident and liability could spiral out of control. The logic from this ruling has been applied to stillbirth cases (7).

Vaccaro v. Squibb Corp (Vaccaro II), 1980: This case, in which a mother unsuccessfully sued for emotional damages after her child was born limbless due to a drug her physician had prescribed, established that prenatal care doctors do not owe a duty to pregnant mothers, but only to fetuses. As Campo (2013) explains, “This logic was certainly flawed, because both the mother and the unborn fetus are obviously patients of the prenatal care physician.”

Tebbutt v. Virostek, 1985: In this case, stillbirth occurred after a doctor performed an ill-advised amniocentesis. However, the court denied emotional distress recovery to the mother because she did not pass something called the “zone of danger” test. To satisfy the zone of danger requirement, a mother would have to prove that a) the physician’s negligence put her in immediate physical danger (separate from the harm to her fetus), and b) that she was aware of and frightened by this risk. In the case of Tebbut v. Virostek, the mother was found not to have been in independent danger, and she did not become aware the fetus was harmed until weeks after the procedure (9). Dissenters to this ruling stated that it left stillborn babies in “juridical limbo, where negligent acts, with fatal effect, performed upon the child are neither compensated nor deterred” (10).

Johnson v. Verrilli, 1987: The court held that since New York law did not treat fetuses as people, then they must be part of the mother. Therefore, damage to the fetus would constitute physical damage to the mother, which could be cause for legal action. In Johnson v. Verrilli, the court agreed with the dissenters in the Tebbutt v. Virostek case, saying that if the fetus had no cause of action, it was common sense that the mother should (8). However, as expressed by Goodzeit (1994), “treating the fetal tissue as simply another part of the woman’s body may unrealistically undervalue women’s claims of emotional distress.”

Broadnax v. Gonzalez, 2004: In this case, the New York Court of Appeals overruled Tebbutt, deciding that prenatal care doctors do indeed owe a duty to the pregnant women who are their patients, and that mothers may sue for emotional damages without a separate, physical injury. In sum, it established that mothers could pursue legal action after a stillbirth caused by medical negligence because of their own emotional distress (7, 11). However, this did not extend to parents whose infants died shortly after birth. On this matter Bondi-Stoddard (2007) noted, “It is illogical to deny adequate compensation to a plaintiff on the basis of whether or not the infant survived for a short period of time after birth. Parents should be compensated for their loss and defendants should be responsible for the damages they caused.”

Current Climate of Stillbirth LitigationCandle

Today, stillbirth laws vary state-by-state. Many now allow parents to pursue legal action through a wrongful death claim. In most of these states, the fetus must have been viable (able to survive outside the womb) before they died viability is generally recognized at 24 weeks of gestation.

Other jurisdictions permit financial recovery based on negligent infliction of emotional distress. Compensation is often minimal, however, as courts have struggled to quantify the parents’ emotional suffering. Of course, we know that there are costs both direct and indirect of having a stillbirth. The most immediate costs involve postmortem testing (autopsies can cost parents thousands of dollars out-of-pocket) and arrangements for the body (1, 12). There are also expenses associated with treatment for mental health concerns, which in some cases may require medication as well as counseling. Many parents experience symptoms of depression for years after a stillbirth (3). Mental health issues may also interfere with work productivity, and parents may need to take time off of work. There are also less quantifiable costs, such as stress on relationships and stigma (12, 13).

It is indeed difficult to truly determine the costs of having a stillborn baby, but many states have caps on damages (limits to how much the parents can receive from a lawsuit) that are unreasonably small. Moreover, for attorneys, the costs associated with representing a plaintiff in a stillbirth case can be very high because they must call upon witnesses who are experts in prenatal and obstetrical care. In many states, litigating these cases becomes cost prohibitive, and malpractice attorneys often decide not to work in this area of law. For parents, finding representation is not necessarily impossible, but may be challenging.

CANDOR System: Open Communication Helps Grieving Parents and Medical Professionals

Reasonable compensation enables parents to take time to grieve, and obtain the resources they need to rebuild their lives (such as therapy). However, it is important to note that financial recovery is only one part of the reason parents pursue malpractice cases after stillbirth; many also want the responsible medical organizations or professionals to own up to their mistakes and vow to do better in the future. Unfortunately, in most hospital systems, this is very unlikely to occur, because defendants are highly discouraged from apologizing or acknowledging errors. Many parents face what is commonly referred to as a ‘wall of silence.’ However, certain institutions are now working to break down this wall and open up communication between medical professionals and patients after a tragedy has occurred. The Communication and Optimal Resolution (CANDOR) Toolkit provides hospitals with guidelines for how to implement a more compassionate approach to resolving malpractice-related disputes (this was inspired in part by the “Michigan Model,” which you can read more about here). In hospitals that use CANDOR, physicians are encouraged to explain to patients exactly what went wrong, and how they plan to prevent similar errors from occuring in the future. Financial settlements are often offered before patients file suit. Not only does CANDOR provide parents with a sense of closure and recourse, but the open communication with all parties involved helps medical professionals better learn from their mistakes. Ultimately, it is an important piece of the puzzle that is stillbirth prevention.


The rate of stillbirth in the U.S. is shockingly high, and progress has been frustratingly slow (2, 3). Many of these deaths could be prevented with proper treatment (4, 5). After a stillbirth, parents may want to pursue a medical malpractice case in order to obtain funds for emotional recovery (time off work, counseling, medication, etc.). A second motivation for taking legal action is to hold medical organizations and professionals accountable for their errors, and ensure that the same actions do not result in the death of more unborn babies.

Courts often award compensation to women or infants that are harmed during the birthing process, so that they are able to pay for treatment and other resources. However, if a baby dies during pregnancy or birth, recourse is often very limited, resulting in a “gap” wherein there is less accountability for causing death than for causing injury.

Some courts allow recovery for wrongful death, but restrictions related to viability can prevent parents from pursuing a case even after blatant malpractice has occurred. Other courts permit parents to sue for emotional suffering after a stillbirth, but many are reluctant to do so, citing concerns that mental anguish may be fabricated and difficult to quantify (7, 8, 9). This is despite an overwhelming amount of evidence that parents of stillborn babies experience serious psychological health issues (3, 12, 13).

To fill this legal gap, courts must recognize stillbirth as the preventable tragedy that it is. Moreover, hospital systems can do their part in improving communication between medical professionals and parents, to ensure that their staff acknowledge and learn from their devastating errors. Systems like CANDOR could play an important role in lowering the rate of stillbirth.  


  1. “Ending Preventable Stillbirths.” The Lancet, Jan. 2016,
  2. “Facts about Stillbirth.” Centers for Disease Control and Prevention (CDC), 2 Oct. 2017,
  3. Muthler, Sarah. “Stillbirth Is More Common than You Think – and We’Re Doing Little about It.”The Washington Post, 16 May 2016,
  4. “Stillbirths.” World Health Organization (WHO) ,
  5. “The Neglected Tragedy of Stillbirths.” World Health Organization (WHO) ,
  6. Ellis, Alicia A. “Better Late than Never: New York Finally Closes the Gap in Recovery Permitted for Negligent Infliction of Emotional Distress in Prenatal Medical Malpractice Cases.” John’s L. Rev. 2.80 (2006): 725-752.
  7. Campo, Amanda. “An Analysis of New York State’s Flawed Recovery Scheme in Prenatal Malpractice Actions: Why a Claim of NIED Should Be Available to Plaintiffs.” Pace L. Rev. 33 (2013): 770-794.
  8. Ropiequet, John L. “Emotional distress claims in medical malpractice cases.” Journal of Legal Medicine 11.1 (1990): 59-91.
  9. Goodzeit, Carolyn A. “Rethinking Emotional Distress Law: Prenatal Malpractice and Feminist Theory.” Fordham Law Review 63.1 (1994): 175-214.
  10. Tebbutt v. Virostek, 483 N.E.2d 1142, 1144 (N.Y. 1985) (Jasen, J., dissenting). (As cited within Campo, 2013).
  11. Bondi-Stoddard, Annamarie. “Medical Malpractice Damages in Infant Death Cases.” New York Law Journal 58.258 (2007): 1-2.
  12. Wimmer, Lindsey. “What Does It Cost?” Star Legacy Foundation, 16 Feb. 2017,
  13. Kelley, Maureen C. and Trinidad, Susan B. “Silent loss and the clinical encounter: Parents’ and physicians’ experiences of stillbirth – a qualitative analysis.” BMC Pregnancy and Childbirth 12.137 (2012): 1-15.