Fatal Birth Injuries


The death of a fetus, newborn, or mother can be profoundly shocking. Most people are anticipating the birth of a healthy baby and an addition to a family, not a loss. They go to a healthcare provider trusting in a good outcome. Tragically, there are still prenatal deaths and stillbirths that occur due to professional negligence. Wrongful death is sometimes the fault of a doctor, midwife, or nurse. At DeFrancisco & Falgiatano, our Syracuse birth injury attorneys work closely with medical experts in cases involving fatal harm to determine whether malpractice played a role.

Fatal birth injuries can be sustained for many different reasons. They may be the result of a doctor’s failure to order a C-section, prolonged labor, a midwife’s failure to take a mother and baby to the hospital when it becomes necessary, fetal hypoxia, infection, overuse of Pitocin, failure to diagnose and treat gestational diabetes, failure to call a neonatologist or maternal-fetal medicine specialist, or vaginal birth after a C-section (VBAC).

In New York, parents of a fetus that dies in the labor or delivery process cannot bring a wrongful death lawsuit on behalf of the fetus, even if there was negligence on the part of a health care provider. However, after a baby is born, he or she has a legal status as a person, and any birth injuries that were sustained during the pregnancy or in labor and delivery or postdelivery become actionable, including fatal birth injuries. A parent can bring a wrongful death lawsuit for a baby that died a few minutes after being delivered with fatal birth injuries.

There are a number of medical conditions that can arise during pregnancy, labor, or delivery that require treatment and that can escalate into life-threatening problems for a baby. These include preeclampsia, placenta previa, uterine rupture, placental abruption, and post-partum hemorrhaging. With preeclampsia, a mother suffers extremely high blood pressure that can cause her to suffer seizures or cause the placenta to separate. Sometimes when doctors don’t quickly respond to fetal distress, the lack of oxygen can cause brain damage to a baby; sometimes this brain damage proves to be fatal after the baby is delivered. In other cases, if the doctor uses forceps or a vacuum inappropriately, or fails to order a C-section in a timely fashion after prolonged labor, the baby may be born with birth injuries that prove fatal.

In order to recover damages for a wrongful death, parents need to prove: (1) there was a death of an infant, (2) the defendant’s wrongful act, neglect or default caused the death, (3) the negligence gave rise to a cause of action that the decedent could have pursued in a lawsuit had he or she not died, (4) the decedent is survived by at least one person who suffered a loss because of the death, (5) the decedent’s estate can recover specific damages.

In order to establish that there was medical malpractice resulting in birth injuries, you will need to show: (1) the defendant health care provider owed a professional standard of care, (2) deviation from the professional standard of care, (3) causal relationship between the deviation and fatal birth injuries, and (4) damages. In order to establish these factors, it will be necessary to engage a specialist as a witness who can testify about standards of medical treatment and how a doctor’s actions led to a baby’s injuries. It may also be necessary to retain other experts, such as experts on pecuniary losses, to establish your damages. An experienced birth injury lawyer can help you identify and work with an expert qualified to offer testimony and analysis in your case.

The decedent’s estate’s personal representative is the only person who can bring a wrongful death lawsuit in New York. Accordingly, New York parents need to be appointed as personal representatives of the decedent’s estate in the case of fatal birth injuries. The named plaintiff will be the party that holds the proceeds of the suit, and who also serves as a statutory trustee for funds to be distributed. As a parent, you only have two years from the date of death to be appointed as personal representative and file suit. If you don’t file within that time, you lose the right to pursue remedies in a wrongful death suit.

Pecuniary damages can be recovered through a wrongful death lawsuit in New York. These damages may include amounts for medical aid and other care that was required to treat a baby’s injuries before death, as are the costs of burial and funeral expenses. Damages can also be recovered for conscious pain and suffering the decedent experienced before death. In order to allow a jury to consider an award of conscious pain and suffering before death, there needs to be some evidence of a decedent’s groan, moan, or other expressions of pain.

In New York, because damages are limited to pecuniary losses, parents can’t get noneconomic losses like mental anguish or pain and suffering, even though their child died as a result of a doctor’s negligence. However, a parent may be able to recover for the services of the child during minority, minus whatever expenses and costs would have been incurred to educate and maintain the child.

It is normal to feel shock and despair after the death of an infant. Many pregnancies are appropriately managed and healthy babies are delivered. Unfortunately, there are tragic circumstances in which a baby’s fatal birth injuries could have been prevented in the exercise of due care. If your baby suffered a fatal birth injury in Syracuse, and you suspect medical malpractice, you can consult the compassionate lawyers of DeFrancisco & Falgiatano. We can represent parents in Syracuse, Rochester, and across Upstate New York, including in Canandaigua, Binghamton, Cooperstown, Ithaca, Auburn, Lyons, Elmira, Wampsville, Utica, Oneida, Lowville, Herkimer, Oswego, and Watertown. Call our firm at 833-200-2000 or contact us via our online form.