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Indiana Medical Malpractice Lawyer | Do Parents Have A Claim For Still Born Child?

Posted by Guy DiMartino | Nov 04, 2014 | 0 Comments

Indiana medical malpractice lawyer discusses a recent Supreme Court case explaining a parents claim for the death of a still born child.

Although tragic, it is not uncommon that a child will die because of medical malpractice during the birthing process.  These facts were presented in a recent case that was decided on December 13, 2011 by the Indiana Supreme Court.  In this case, the Indiana Supreme Court found that the Indiana Medical Malpractice Act and the Indiana Child Wrongful Death Act do not bar the parents claim for emotional damages after the child was still born.

Understanding the back drop of the law is important to understanding the decision.  In a typical negligence claim, if the parents decide to sue for their child's death, the suit has to proceed under the Indiana Child Wrongful Death Act (CWDA).  Before 2002, a pregnant mother was rear-ended by another vehicle and miscarried her 8 to 10 week fetus.  She then brought a lawsuit against the defendant driver for emotional distress related to the death of her unborn child.  The Indiana Supreme Court in Bolin said that an unborn child is not considered a “child” as defined in the CWDA so the mother's lawsuit for emotional distress related to the death of her child go not go forward.  The court did allow the mother's claim for damages related to the miscarriage to go forward.

So with this backdrop, the defendants, who not qualified healthcare providers under the medical malpractice act, took the position that the parents did not have a case for emotional distress because their unborn child was not considered a “child” under the Indiana CWDA.  The Indiana Supreme Court disagreed and said that a claim under the CWDA is available to parents who are seeking emotional damages for their baby that was stillborn.

The Supreme Court also stated that the parents' claim against the hospital can proceed because “[C]laims for negligent infliction of emotional distress, if arising from alleged malpractice, are subject to the MMA.” (medical malpractice act)

Indiana medical malpractice law can be complex.  As the law stands today in January 2012, parents of a stillborn child have a viable cause of action for damages if they are able to prove that the healthcare provider was negligent and the stillborn baby died because of the negligence.

About the Author

Guy DiMartino

I have loved helping people in need for almost three decades.  It has been my privilege to serve people as their pastor, chiropractor, and lawyer.  The current focus of my legal practice and life’s passion is helping the seriously injured receive complete compensation for their injuries. I am a Florida Board Certified Civil Trial Attorney. What that really means is that I am no stranger to the courtroom.  I have successfully tried and handled serious cases in state and federal courts.  My backgrounds in both law and chiropractic medicine have given me a unique perspective, extensive knowledge, and wide experience to serve those I represent. For years as a chiropractic physician, I treated my patients to alleviate their pain and suffering. Now as their lawyer, I fight to bring them financial compensation for their pain and suffering. During my years of service, I have handled many traumatic injury cases ranging from the traumatic amputation of a limb to brain and spinal cord injury.  I consider it an honor to serve you and your family. When a person entrusts me and I accept to represent them, I don’t take that relationship and responsibility lightly. My approach is that we work as a team. We are partners and our goal is the best outcome for you and your family with the highest level of communication throughout. I am always available by phone or email to discuss my potential representation of your injury case. I handle cases throughout Florida. Education: National University of Health Sciences – BS (1984), DC (1986) Valparaiso University School of Law – JD, summa cum laude (1999) Bar Admissions: Florida (2000), Indiana (1999), Illinois (2000, expired); US District Courts of Appeals (11th Circuit, 7th Circuit); United States District Courts: Southern and Middle Districts of Florida; Northern and Southern Districts of Indiana; Northern and Central Districts of Illinois; and District of Colorado. Certification:  Civil Trial, Florida Bar Guy DiMartino on Google+ – Circle Guy on Google+ Guy DiMartino on Google+

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