It is critical to work with a Southwest Florida medical malpractice attorney who understands the complexity of these claims and has the skills, resources and commitment to seek accountability from negligent medical providers when warranted.
An estimated 1 in 4 pregnancies end in miscarriage, according to the American College of Obstetrics and Gynecologists. Most of these occur in the first trimester, and there is often no obvious cause.
Questions of legal accountability can be complicated, but might be raised when there is evidence of a medical provider’s clear error, misstep, or missed diagnosis that caused or significantly contributed to the loss. Possible examples might include:
- A hospital-acquired infection.
- Failure to provide prompt and proper treatment in the event of a medical emergency.
- Missed diagnosis of a serious condition, such as preeclampsia, can lead to miscarriage and/or maternal death.
However, under current Florida law, civil liability for negligence leading solely to the death of a fetus (as opposed to the mother) would not be considered “wrongful death.”
Florida Courts on Civil Liability for Death of a Fetus
Although a person can be criminally prosecuted for causing the death of a fetus (with some exceptions), there is currently no cause of action under Florida’s Wrongful Death Act for the death of a stillborn fetus. The Florida Supreme Court ruled in the 1994 case of U.S. v. Dempsey that the death of a fetus due to negligence that caused physical injury to the mother should be filed as a personal injury action by her. She can additionally pursue damages for emotional pain and suffering due to the loss of the fetus.
A father’s claim for emotional injuries due to a miscarriage is even shakier, and may hinge on the impact rule. That means we’d most likely need to show the father suffered some physical illness or injury that manifested as a result of severe emotional distress caused by the negligence that led to the fetus’s death. It might also depend on how far along the pregnancy is. For instance, the Florida Supreme Court ruled in the 1997 case of Tanner v. Hartog that the impact rule didn’t apply to a case of a father suing for emotional distress following the death of a 41-week-old fetus.
It’s worth noting that there is a bill being weighed in the Florida legislature that would add “parents of an unborn child” to the list of people who can file Florida wrongful death lawsuits. In some other states, wrongful death claims for fetuses are limited to 24 weeks of gestation, or viability. This proposed measure would allow for wrongful death lawsuits pertaining to the loss of a fetus at any stage of development (with a caveat that such a claim could not be filed against the mother).
Maternal Mortality and Medical Malpractice
Florida medical malpractice lawsuits stemming from maternal death are much more straightforward than those stemming from stillbirths/miscarriage.
The U.S. maternal mortality rate increased between 2018 and 2021 – with documented racial disparities. According to the U.S. Centers for Disease Control and Prevention, 1 in 5 mothers say they experienced medical mistreatment while receiving maternity care for their youngest child. That figure shot up to 30% for Black, Hispanic, and multiracial respondents, as well as those with public insurance or no insurance. An estimated 45% of all respondents reported being held back from asking questions or discussing concerns with their provider. Such “mistreatment” is undoubtedly problematic, but may only be legally actionable if it leads to adverse medical outcomes.
According to the Florida Department of Health, non-Hispanic Black women were four times as likely to have a pregnancy-related death compared to non-Hispanic White women in 2020. Among the most common causes of pregnancy-related death in Florida:
- Hypertensive disorder (high blood pressure) – 18.2%
- Infection – 13.6%
- Hemorrhage (bleeding) – 9.1%
- Cerebrovascular accident (stroke) – 9.1%
- Thrombotic embolism (blood clots that reduce blood flow) – 6.8%
- Cardiovascular disorder (conditions affecting the heart or blood vessels) – 6.8%
- Cardiomyopathy (disorders that affect the heart muscle) – 6.8%
- Amniotic fluid embolism (amniotic fluid gets into the bloodstream before, during or immediately after childbirth) – 2.3%
Not all pregnancy-related deaths are the result of medical malpractice. But when such tragedies occur, families may understandably want to explore whether substandard care was a factor. Our dedicated and compassionate Fort Myers medical malpractice lawyers are available to help patients and survivors review the facts and determine whether the legal action is an option.
If you have been injured in Fort Myers, Port Charlotte, Sarasota, Cape Coral, Naples, or Key West, contact Garvin Injury Law at 800.977.7017 for a free consultation.
Additional Resources:
Vital Signs: Maternity Care Experiences — United States, April 2023 MMWR, CDC
More Blog Entries:
5 Must-Know Facts About Florida Personal Injury Law, Dec. 13, 2023, Fort Myers Medical Malpractice Lawyer Blog