Is Stillbirth Medical Malpractice Success Directly Proportional to Weeks of Pregnancy?

According to the CDC in its “Facts about Stillbirth,” stillbirth, the fetal loss 20 or more weeks after a woman becomes pregnant, effects about 1% of all pregnancies. About 24,000 stillbirths occur in the U.S. annually. Stillbirth is classified as either early, late, or term. An early stillbirth is a fetal loss occurring between 20 and 27 completed weeks of pregnancy. A late stillbirth is a fetal loss occurring between 28 and 36 completed weeks of pregnancy. A term stillbirth occurs after 37 completed weeks of pregnancy. The rate of early stillbirth has remained the same over time. Because of advances in medical technology over the last 30 years, prenatal care has improved, which has dramatically reduced the number of late and term stillbirths. Logically, this should translate to a directly proportional relationship between the likelihood of success for medical malpractice claims brought for failure to predict late or term stillbirth and the number of completed weeks of pregnancy. However, stillbirths with an unknown cause, referred to as unexplained stillbirths, are more likely to occur the further along a woman is in her pregnancy.


These conflicting trends lead litigants to shift from focusing on the specific medical cause of late and term stillbirths to the failure of prenatal care providers to predict fetal stillbirth. For example, in Stafford v. Szymanowski, 2015 WL 3485613 (Ind., June 2, 2015) (not designated for publication), a doctor conducted a biophysical examination of a pregnant woman. Five days after the biophysical examination, her son was delivered stillborn. Indiana’s Medical Review Panel issued its unanimous expert opinion that the evidence did not support the conclusion that the doctor failed to meet the applicable standard of care and that the doctor’s conduct was not a factor in the stillbirth. The woman’s medical expert opined that the biophysical examination five days before the stillbirth, if performed properly, should have predicted the chances of fetal survival for up to a week thereafter, which led him to conclude that the biophysical profile was performed, or interpreted, improperly.

The Supreme Court of Indiana reversed the trial court’s grant of the doctor’s motion for summary judgment. The court held that a genuine issue of material fact existed regarding whether the doctor breached the standard of care. The court explained that in medical malpractice cases, when there is a unanimous opinion of the Medical Review Panel that the physician did not breach the applicable standard of care, the burden shifts to the plaintiff to avoid summary judgment in favor of the physician, who may rebut with expert medical testimony. The court reasoned that, although the Panel issued a unanimous opinion that the doctor did not breach the applicable standard of care, the woman presented expert medical testimony to rebut that opinion. The court held that the woman’s medical expert’s affidavit and deposition were competent evidence establishing a genuine issue of material fact that the doctor breached the standard of care in his treatment of the woman. Because of this evidence, the lower court’s grant of summary judgment to the physician was reversed.

For a more egregious example of failure to predict late stillbirth, in Fast v. Kennewick Public Hospital District, et al, 2016 WL 6806426 (Wash., November 17, 2016) (not designated for publication), the treating physician ordered intermittent fetal monitoring for a 29-week-pregnant woman hospitalized for uncontrolled gestational diabetes. The monitor detected fetal distress several times, indicating decelerations of the fetal heart rate. The nursing staff’s response was to turn off the monitor, rather than to substitute a different monitor or to expedite delivery of the unborn child. No further action was taken. The treating physician did not review the fetal monitor strips. Around 4 a.m. the day after the woman was admitted to the hospital, the nurses were unable to detect a fetal heartbeat. Later that day, the woman delivered her stillborn baby. The Supreme Court of Washington reversed the trial court’s grant of summary judgment in favor of the doctor and hospital on statute of limitations grounds. The court held that, in cases of wrongful death resulting from negligent healthcare the medical negligence statute of limitations, which may be tolled for one year upon the making of a good faith request for mediation, applied, not the general torts statute of limitations, which lacks a mediation tolling provision.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more discussion of Fast v. Kennewick Public Hospital District, et al, 2016 WL 6806426 (Wash., November 17, 2016) (not designated for publication), see Scalpel Weekly News, November 28, 2016, “Tolling for Mediation Applies to Medical Negligence Death Claims; Gestational Diabetes.”

For more details on Stafford v. Szymanowski, 2015 WL 3485613 (Ind., June 2, 2015) (not designated for publication), see Scalpel Weekly News, June 15, 2015, “Clinic Not Vicariously Liable; Stillbirth Malpractice Survives Summary Judgment.”

See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability

See the Medical Law Perspectives March 25, 2015, Blog: Risks of Prescription and OTC Pain Medicines During Pregnancy

See the Medical Law Perspectives December 17, 2014, Blog: Who Qualifies As An Expert for Certified Nurse Midwife Malpractice Litigation?

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