Can Doctors Be Sued For the Wrongful Death (or Injury) of An Unborn, Pre-Viable Child?

At least nine states allow recovery of damages for the wrongful death (or injury) of a pre-viable baby. Viability refers to the ability of the baby to survive outside the womb, even if only in an incubator.

Two more states, Georgia and Mississippi, permit recovery for the wrongful death (or injury) of an unborn child if the mother has felt the baby move inside the womb prior to the time of the injury. This movement is referred to as “quickening.”

Quickening occurs earlier than viability. Courts in Georgia have recognized that quickening can occur as early as 10 weeks into a pregnancy. One way to prove that quickening has occurred is to produce medical documentation that the mother felt the baby move prior to the injury or death.

On February 17, 2012, the Alabama Supreme Court decided the case of Amy Hamilton, individually and on behalf of her stillborn son v. Dr. Warren Scott et al. The issue in this case was whether under Alabama law a physician can be sued for the wrongful death (or injury) of an unborn, pre-viable fetus. A lower court had decided that Alabama law did not permit lawsuits on behalf of unborn children who were unable to live outside the womb at the time of the death or injury. The Alabama Supreme Court reversed the lower court and recognized that a family who loses an unborn child has the right to sue when their baby dies due to medical negligence, whether or not the child had reached the point of viability.

This welcome decision from the Alabama Supreme Court is part of a broader trend in some states to recognize that unborn children, no matter their stage of development, are persons and should enjoy the full protection of the law.

Georgia courts would do well to look to the Hamilton vs. Scott decision as persuasive authority. I have argued in an earlier blog post that I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member.

I hope you will join me in celebrating the Hamilton vs. Scott decision! 


Alabama doctors can be sued for death of unborn, pre-viable child

Hamilton vs. Scott decision

“Baby Strep” Infection After Birth – Brain Injury

Group B Streptococcus (also known as GBS or “B Strep”) is a type of bacteria that can be passed from mother to baby during delivery and if not detected and treated early enough can lead to an infection that causes a brain injury. The brain injury can lead to a host of medical issues, including cerebral palsy, spastic quadriplegia, seizure disorders, an inability to swallow, communications deficits, incontinence and permanent pain. Other complications of Group B Strep (“Baby Strep”) infections are sepsis, pneumonia, meningitis, and death (Group B Strep is the most common cause of sepsis and meningitis in the United States during a newborn’s first week of life).

Group B Strep can easily be prevented. It is customary for doctors to run a battery of diagnostic tests prior to delivery, including a test for Group B  Strep. If the bacteria is detected neonatal antibiotics can be prescribed to eliminate it. The cost of the testing is minimal.

If the diagnostic test is not ordered (more common with premature births – this test is typically undergone in last month prior to delivery), there are well settled protocols for observing the infant after delivery to detect Group B Strep infection. The doctors and nurses taking care of your baby are responsible to follow these protocols so they can detect the infection and administer antibiotics immediately. Delay in starting antibiotics can result in catastrophic injuries to a newborn, including severe and permanent brain injuries.

If you feel that the doctors involved with the delivery and post-delivery care of your child negligently failed to recognize and act upon risk factors and signs indicating Group B Strep infection and caused your baby injuries by failing to administer antibiotics – please call me.

The life time costs of caring for a child with a brain injury is daunting. In one recent case the family of a brain injured child was awarded over $29 million in damages for past and future losses and expenses.

Here is one mom’s story of how doctors failed to order the proper diagnostic tests prior to delivery and her baby contracted Group B Strep (GBS) –

And here is a nicely done video that covers the basics of Group B Strep detection and prevention –

Injury to Child – Sepsis and Brain, Kidney, Lung, & Heart Damage

Sepsis, severe sepsis, and septic shock are life-threatening conditions that occur when your child’s body responds to an infection by beginning to break down tissues and organs.

Sepsis is a toxic response to an infection. The immune system, instead of protecting your child’s body, attacks it. With sepsis the body’s immune system over-reacts to the presence of bacteria and produces molecules that damage the organs.

If sepsis is not diagnosed right away and a full course of antibiotics is not given, the bacteria will spread. If the infection is not controlled bacteria can spread to your child’s central nervous system and cause irreversible damage to the baby’s brain. Irreversible damage to other organs such as the kidneys, lungs, and heart, can also occur. Bacteria can also infect the spinal cord, resulting in spinal meningitis.

As of 2011, Sepsis is the 10th leading cause of death in the United States. The very young are at a higher risk of Sepsis (as are the elderly and anyone with a compromised immune system).

Injury and death from Sepsis is preventable IF your doctor recognizes it is a true medical emergency and starts antibiotics right away.

The video below, produced by the Sepsis Alliance (advocates for encouraging doctors and hospitals to treat Sepsis like the true medical emergency that it is), tells the story of a Georgia dentist’s daughter whose life could have been saved if her doctor had not failed to diagnose Sepsis –

If your loved one is injured or died due to Sepsis and you suspect the doctor or hospital did not diagnosis it early enough or failed to treat it properly and you need to talk, you can contact me here or here or here.