“What’s It Worth?” — the Impossible but Necessary Calculus of Suffering in Medical Malpractice Suits

When a previously healthy unborn baby dies from a medical error during birth, what should the grieving mother be paid for her suffering?

That is the difficult but necessary calculation that must be made in any malpractice lawsuit where the clock cannot be turned backwards to restore the baby to life, and the only justice the legal system can measure out is money compensation for a tragedy that should have been prevented.

There is no doubt that the emotional injury to the mother and father of the stillborn child can endure for many years, even when no malpractice has occurred and there is no one to blame but fate. A recent letter writer in the New York Times explained:

My husband and I lost our son in 2008. We arrived at the hospital one evening, me in labor and giddy with anticipation. The news of our baby’s death was delivered to us before I delivered him. The loss is devastating. The silence hurts just as much: the empty crib in the waiting nursery; the friends and co-workers who avoid conversation and eye contact; family afraid to acknowledge our loss.

Another story in the Times talks about how lawyers and judges grope to calculate fair numbers for a stillbirth that should not have happened.

On top of the hurt of losing a baby is the pain of being let down by health care providers whom the patient has trusted with her own health and the health of her baby. Many patients need therapy to get past the sense of betrayal they feel about their doctors and nurses.

Another issue in stillbirth malpractice is the desire to see that this kind of problem doesn’t happen to other patients. Our firm worked on a recent case on behalf of a couple in northern Virginia. The core issue was the hospital’s failure to adequately staff its labor and delivery unit, leading the nurse who was supposed to be working one-on-one with our mother to over-extend herself with other patients. You can read more about this case on our firm’s website, at this link.

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