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Indiana Medical Malpractice Causing Stillbirth — a Wrong Without a Remedy?

Jan 16, 2009 | Birth Injuries, Firm News

Medical errors during pregnancy can lead to the death of the infant before delivery. The loss suffered by the parents in such a situation is devastating. Unfortunately, lawyers representing negligent doctors in Indiana are trying to add insult to the parents’ injury by arguing that the parents have no legal remedy against the doctor whose negligence caused the tragic loss.

The problem arises from a decision of the Indiana Supreme Court and the language of Indiana’s Medical Malpractice Act. In the case of Bolin v. Wingert, the Indiana Supreme Court ruled that the only remedy for the death of a child before delivery is a claim for emotional distress suffered by the parents of the unborn child. The court found that a legal claim for the death of the child — a wrongful death claim — can only be made when the child is born alive.

While the Bolin decision limited the legal remedies available to parents for the death of their unborn child, doctors and their attorneys are now fighting to eliminate all legal remedies for stillbirths caused by medical malpractice. They argue that the Indiana Medical Malpractice Act only provides relief for “bodily injury or death.” The doctors’ attorneys claim that under the supreme court’s decision in Bolin v. Wingert, a stillbirth is not a death or bodily injury. Because a stillbirth is not a death or bodily injury, there is no remedy under the Indiana Medical Malpractice Act.

The law firm of Garau Germano, P.C. is fighting to make sure that parents can secure justice for the loss of their unborn child. We are currently pursuing a case before the Indiana Court of Appeals which should clarify that claims for emotional distress — including claims resulting from stillbirth — are covered by the Indiana Medical Malpractice Act. When a doctor’s negligence causes the loss of a pregnancy, the parents deserve a remedy.