Legal Forum
"Should We Sue?"

Mistakes happen. As proof, just look at an ordinary pencil. Despite all the advances in science and technology, pencils still come with an eraser because we all make mistakes. So do doctors. Mistakes in diagnosis. Mistakes in judgment. Mistakes in treatment.

When we lose our baby to stillbirth we want answers. It's only natural to want to blame someone. We begin by blaming ourselves, though rarely is that ever right. Mothers as a rule don't cause their baby's stillbirths. Next we question whether there was some way our doctor was responsible. Rarely is that ever right either. But there are times when it is. The sad fact is there are times when through negligence, incompetence, or lack of concern for the plight of the patient that a baby died that could have been delivered live. We read of a case recently where a baby in distress died after the mother went to the hospital because the duty nurse didn't want to wake up the on-call doctor who was sleeping down the hall!

Nine times out of ten doctors who make mistakes - that goes for nurses and hospitals too - could probably avoid being sued by admitting their error and apologizing to the parents. Sadly, that's not what many of them do, leaving parents with a hard choice. Do they walk away or do they seek legal representation?

Lawsuits are gut-wrenching, soul-searing experiences. The ones we read about in the paper in which large verdicts are awarded are the exceptions. More often verdicts are far less generous and in many states there are limits on verdicts. Some even bar awards for emotional suffering, and yet emotional suffering is what stillbirth is all about.

From the time of filing a lawsuit one can expect the process to grind on anywhere from two to five years! During that time you can expect every aspect of your life to be subject to "discovery". Did you take a drink during your pregnancy? What about cigarettes? Did you take herbal preparations? What vitamins did you take? Did you have extramarital relationships or expose your baby to viruses in some way. Did you use drugs? Exchange contaminated syringes? The point is you, the mother, will be put on trial by the doctor's attorney, every bit as much as the doctor will be tried by yours. Litigation is not for the feint of heart. If you understand the process, and are emotionally strong to withstand the challenge, then the next step is to see if you "have a case".

Knowing something to be true and proving it to a jury are two entirely different things. To prove something you will need facts. Records. Dates. Times. Medical charts. Or at least know they exist and your attorney be able to get access to them. You will need the testimony of witnesses who personally participated in or observed an event. The nurse, in the example above, testified she did not wake up the doctor. The hospital quickly settled!

What to do next if you think your doctor or hospital was responsible and you want to pursue the possibility of legal action:

Start with your family lawyer and ask him or her to send a letter to the doctor and/or or hospital setting forth the allegation(s), reasons you feel they are responsible, and include a demand that damages be paid to you within 90 days. Do not specify an amount. When they receive the letter they will automatically turn it over to their insurance carrier (as all liability policies require them to do) and your lawyer can expect to be contacted. They may reject your claim outright, or, they may seek to work out a settlement. Settlements are always preferable to suing. By all means let your attorneys know you'd be receptive to a settlement. Even if you would not accept one, there are two pitfalls to avoid:

DO NOT THREATEN TO SUE IF THEY FAIL TO MEET YOUR DEMAND

DO NOT THREATEN TO "TAKE AWAY" THE DOCTOR'S LICENSE

If you are to have any chance of winning - and lots of stillbirth parents do every year - it won't be because of emotion. If it were that easy we would all be entitled to sue. Yes, you have suffered a grievous loss. But the decision to sue, and the act of suing, must be based on legal precedent and facts - as stated earlier - and not emotion. Juries may sympathize with you, but rarely do they award damages unless there is hard evidence of negligence. If, after weighing all the plusses and minuses you decide to go ahead and file a lawsuit, there's one last step available to you and that's an impartial opinion from outside medical and legal professionals.

Through the National Stillbirth Society you can have your stillbirth experience reviewed by our legal and medical experts who can offer opinions whether negligence or ignorance was a factor. They won't be available to testify at a trial, but neither is there a charge for their review. To avail yourself of this service you simply need to e-mail your story to us at stillnomore@cox.net. If you have any records or test results you want reviewed please fax them to us at 602-861-8090. THERE IS NO CHARGE FOR THIS SERVICE.

Our goal in offering to help is to see that stillbirth parents thinking about litigation have access to competent legal and medical advice. Contrary to what some believe, it is not to promote litigation. Litigation, like a roller coaster ride, is not for the feint hearted. Like a roller coaster there are sharp turns and steep climbs followed by plummeting dives. Once it leaves the gate you can't "get off" till it's over. More often than not, even among those parents who win their case, a majority would not subject themselves and their spouse to litigation again.

So weigh the pros and cons and make your choice. "Should we sue?" is up to you.

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Last Updated 07/20/2006     Design donated by Web-Writer