Birth Injury:

Death of the Child

In most birth injury lawsuits involving a fetal death, the damage awards decrease considerably. When a child dies, the birth injury lawsuit goes from being a medical malpractice case to a wrongful death case, where the lawsuit is usually filed by the parents for the benefit of the parents. In a wrongful death lawsuit, there are generally no damages awarded to the child, with the possible exception of damages that may have occured when the child was alive (i.e. pain and suffering).

Parents should be able to recover what they would have received from the child in terms of money and services. However, whatever amount that ends up being is reduced by an estimate of what the parents would have spent on the child. In most birth injury cases involving a wrongful death, the amount spent on rearing a child outweighs the amount that parents receive from a child. Funeral expenses and reimbursement for medical expenses are usually available. Many states allow parents to recover for non-economic damages.

Typically, limitations are not placed on how a plaintiff can spend an award in a wrongful death case unless agreed to by the parties.