Can You File a Malpractice Claim for a Stillbirth?

August 15, 2025

Yes, you can file a medical malpractice claim for a stillbirth in Pennsylvania and New Jersey. A successful claim requires showing that a healthcare provider’s actions, or a failure to act, fell below the accepted medical standard of care and that this negligence directly caused the loss of your baby.

For a confidential conversation about your experience, call Wapner Newman at (215) 569-0900.

What Are the Grounds for a Stillbirth Malpractice Claim?

The Core Question: Was This Preventable?

While not every tragic outcome is the result of a medical error, research suggests that a significant number of stillbirths are, in fact, preventable. The core of a legal claim is to determine if your loss falls into that category.

What Is the “Standard of Care” in an Obstetric Case?

The “standard of care” is a central concept in any malpractice case. It is the set of established protocols and unwritten rules that a reasonably careful healthcare provider is expected to follow in a similar situation.

Think of it as the safety checklist a pilot is required to follow before every flight. A doctor has a similar duty to follow established medical guidelines to ensure the safety of both mother and baby during pregnancy, labor, and delivery. This standard is not determined by lawyers or judges, but by the medical community itself, based on what other qualified obstetric professionals would do in the same circumstances.

The Three Elements We Must Establish for a Successful Claim

To succeed in a claim for a stillbirth, we must prove three distinct elements:

A Breach in the Standard of Care: We must demonstrate that your doctor, nurse, midwife, or hospital either did something they should not have done or, just as often, failed to do something they were obligated to do.
Causation: We must show, using medical records and testimony from other qualified medical professionals, that this specific failure in care directly led to the stillbirth.
Damages: This is the legal term for the harms and losses you have suffered. This includes not only financial costs but also the immense emotional grief and anguish that accompanies such a loss.

Common Failures in Care That Can Lead to a Stillbirth

When a Mother’s Concerns Are Dismissed

One of the most tragic and common themes in stillbirth cases is the dismissal of a mother’s concerns. An investigation by ProPublica highlighted how frequently pregnant women report a change in their baby’s activity, only to be told everything is fine without a thorough evaluation. This is particularly true for women who report decreased fetal movement, a key indicator that a baby may be in distress.

Failures in Monitoring and Testing

Modern obstetric care relies on a series of tests and monitoring procedures to track a baby’s health. A failure at any point in this process could have devastating consequences.

Inadequate Fetal Monitoring: This may involve not properly tracking the baby’s heart rate during labor or failing to recognize clear signs of distress on the fetal monitoring strips.
Misinterpreting Test Results: A provider might overlook signs of a problem on an ultrasound, such as intrauterine growth restriction (IUGR), or misread the results of other prenatal screenings.
Failure to Order Necessary Tests: This includes not screening for common but dangerous conditions like gestational diabetes or preeclampsia, particularly when the mother has known risk factors.

Undiagnosed and Mismanaged Medical Conditions

Certain medical conditions that arise during pregnancy require vigilant management. A failure to diagnose or properly treat them could constitute a breach of the standard of care.

Preeclampsia: This condition is marked by high blood pressure and protein in the urine. When doctors fail to diagnose and manage it, the results could be catastrophic.
Placental Issues: A provider may miss signs of placental abruption (when the placenta detaches from the uterine wall) or placenta previa, both of which can cut off the baby’s supply of oxygen and nutrients.
Infections: Failing to diagnose and treat infections like Group B streptococcus (GBS) or other bacterial infections may lead to a uterine environment that is dangerous for the baby.

Errors During Labor and Delivery

The final hours of pregnancy are a period of high risk. Errors made during labor and delivery can be fatal.

Delayed C-Section: Recognizing signs that the baby is in distress but waiting too long to perform an emergency Cesarean section is a frequent cause of preventable stillbirths.
Improper Use of Delivery Tools: The negligent use of instruments like forceps or a vacuum extractor could cause fatal injuries.
Mishandling Umbilical Cord Complications: A failure to act quickly and appropriately when the umbilical cord becomes compressed or prolapses will cut off the baby’s oxygen supply.

The Legal Process for Stillbirth Claims in Pennsylvania & New Jersey

How the Law Views a Stillbirth Claim

A stillbirth claim is typically pursued through specific legal actions designed to compensate families for their loss.

Pennsylvania: A claim is generally brought under the state’s Wrongful Death Act and Survival Act.
A Wrongful Death claim compensates the parents and close family members for their own immense losses, including the loss of their child’s companionship and the profound grief they endure.
A Survival Action is a claim brought on behalf of the baby’s estate for the suffering the baby might have experienced before death.
New Jersey: The claim is filed under New Jersey’s Wrongful Death Act, which allows designated family members to seek compensation for the financial and emotional losses they have suffered because of the death. New Jersey also has a Survival Act that allows the estate to recover for the baby’s suffering.

The Deadline to File Is Absolute: The Statute of Limitations

A statute of limitations is a strict deadline for filing a lawsuit. If you miss this deadline, you will likely be permanently barred from seeking justice in the future.

Pennsylvania: The deadline for a medical malpractice claim is generally two years from the date the negligence occurred or was discovered. For a wrongful death or survival action, the claim must be commenced within two years of the death.
New Jersey: The deadline for filing a medical malpractice claim is also two years from the date the malpractice took place or was reasonably discovered.

The Certificate of Merit: A Required First Step

Both Pennsylvania and New Jersey have a rule designed to prevent lawsuits that lack a solid medical basis. Before a malpractice lawsuit can proceed, it must be reviewed by a qualified medical professional.

This professional must sign a document, called a Certificate of Merit in Pennsylvania or an Affidavit of Merit in New Jersey, stating that there is a reasonable probability that the care provided fell below the accepted professional standard. Our firm handles this entire process, from finding the right medical professional to ensuring this document is properly filed, so that every claim we bring is built on a strong medical foundation.

Building Your Case: How We Investigate the Truth

Step 1: The Initial Consultation and Story Gathering

It all begins with a conversation. In a safe and confidential setting, we will invite you to share your story. We need to hear about every appointment, every concern you raised with your providers, and every interaction you had.

Step 2: Gathering the Evidence

The full medical chart provides the objective, written account of the care you and your baby received. Our team will formally request and meticulously organize all the paperwork. This includes:

All prenatal visit notes from your OB-GYN.
Ultrasound reports and fetal non-stress test strips.
All hospital admission, labor, and delivery records.
Records from any specialists you saw during the pregnancy.

Step 3: The Medical Review

We work with a network of respected, board-certified obstetricians and other medical professionals who will conduct an independent review of your records. Their job is to analyze the care you received and determine if it met the required standard. They are trained to spot the missed signs, the ignored warnings, and the critical deviations from established medical protocol.

Step 4: Seeking Definitive Answers Through Autopsy and Placental Exams

Unfortunately, diagnostic tools like autopsies and placental examinations are performed in a surprisingly low number of stillbirth cases. If these procedures were performed, the reports would be key pieces of evidence. If they were not offered or performed, this failure to investigate the cause of a poor outcome could sometimes be part of the negligence itself.

What Accountability and Compensation Look Like in a Stillbirth Case

For many families, the most important outcome is getting clear, definitive answers about what happened and why. A lawsuit can force healthcare providers and hospitals to be transparent and hold responsible parties accountable. This results in improvements to hospital policies and procedures, potentially preventing another family from enduring the same tragedy.

Calculating Damages in a Stillbirth Claim

The compensation available in a stillbirth claim is intended to recognize the full scope of your loss.

Non-Economic Damages

This is the largest and most significant part of these claims. It is compensation for the profound, lifelong emotional pain, mental anguish, grief, and loss of companionship that parents suffer.

Economic Damages

This covers the tangible, out-of-pocket financial costs associated with the pregnancy and loss, including:

Medical expenses for prenatal care and the delivery.
Funeral and burial expenses.
Wages you lost while unable to work.
The costs of psychological counseling or therapy to help you cope.

Frequently Asked Questions About Stillbirth Malpractice Claims

The hospital told me the stillbirth was “unexplained.” Does that mean I don’t have a case?

Not at all. An “unexplained” loss is a sign that a thorough, independent investigation has not yet been performed. Our medical review process is designed specifically to find answers that may have been missed. Many stillbirths that are initially labeled “unexplained” are later found to have been caused by preventable medical errors.

Will I have to face the doctor in court?

The vast majority of medical malpractice claims are resolved out of court through negotiation or a formal process called mediation. However, our philosophy is to prepare every case as if it will go to trial. This meticulous preparation puts you in the strongest possible position to achieve a fair outcome, whether at the negotiating table or in front of a jury.

I feel guilty and don’t want to blame my doctor, who was very nice. What should I do?

These feelings are completely normal and understandable. A malpractice claim is not a personal attack; it is a formal request for accountability from a medical system. The claim is typically filed against the hospital’s or clinic’s insurance policy, not the doctor’s personal finances. The goal is to correct a failure in the standard of care to protect future patients.

How is a stillbirth claim different from a birth injury claim in Pennsylvania or New Jersey?

The main difference is in the type of damages that are sought. A birth injury claim involves a child who was born alive but with injuries caused by negligence. In those cases, damages focus on the child’s future medical care, specialized equipment, therapy, and loss of future earning capacity. A stillbirth claim, brought under wrongful death and survival statutes, focuses on the profound emotional loss and suffering of the parents and any suffering the baby may have endured.

Your Path to Answers and Accountability

Your intuition that your concerns were not taken seriously or that your loss was preventable deserves to be heard and investigated.

If you are questioning the medical care you received in Pennsylvania or New Jersey and believe that negligence played a role in the loss of your baby, please contact Wapner Newman. Allow our firm to help you find the truth.

Call us today for a free and confidential consultation at (215) 569-0900.