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Indiana Medical Malpractice Lawyer | Do Parents Have a Claim for Still Born Child?

Guy DiMartino
Nov. 4, 2014

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.