My Grandchild Died During Delivery…

Hopefully, you’ll never face this nightmare. But what would you do if the unthinkable happens and you believe the hospital or physician is at fault?

For the sake of illustration, let’s say that an infant died during childbirth. Perhaps it was a difficult delivery. Perhaps it was an error or oversight. What rights do the grandparents have? Can they sue for medical malpractice?

Who Can Claim Damages?

Unfortunately, in most states grandparents do not have the right to seek damages in the death of a grandchild. With few exceptions, only direct heirs can bring a wrongful death lawsuit. For example:

• In Kansas, only a parent can bring the claim. In rare instances, an estate could be opened and a personal representative appointed in place of the parent.
• In Oklahoma, a parent can bring the claim, or an estate can be opened and a personal representative would bring the claim. Grief and bereavement damages are allowed.
• In Missouri, only the parents can claim damages, which can include funeral expenses and reasonable damages for loss of companionship and support.
• In Arkansas, parents can claim pecuniary (monetary) damages. In addition, parents, siblings, and grandparents can claim damages for loss of companionship.

If the parent cannot bring suit, a grandparent could be allowed to bring suit on behalf of the grandchild. This would normally only happen if the parent has died or is incapacitated.

Other Things to Keep in Mind

In some states (e.g. Arkansas) certain heirs and family members may be able to sue for loss of companionship (sometimes called loss of affection or loss of consortium).

Every state has a statute of limitations for wrongful death claims, often as little as two years. Any legal action must be taken before the statute of limitations expires.

Many states have caps limiting awards for various types of damages. For instance, Kansas limits damages for loss of companionship to $250,000 and Missouri places a cap of $700,000 on damages for death due to medical malpractice.

Consult an Attorney

The laws concerning wrongful death can be complicated and confusing, and they differ from state to state. If you have any questions or just want to examine your legal options, you should seek the help of an attorney. Initial consultations are usually discounted or free.

Look for a firm with a good understanding of both personal injury and medical malpractice law in the state where the death occurred. The firm should be able to show a successful track record of settlements and verdicts in that state.

Even if you’re not able to seek legal remedy, you may still be able to make a difference. All hospitals and physicians are licensed by state boards. You can file a complaint with the relevant board, which should lead to an investigation of the incident in question.

Again, we hope nothing like this ever happens to you. But if you need to talk to an attorney, please call us at (417) 313-1130 or (417) 319-2113. With 140+ years of combined experience, Johnson, Vorhees & Martucci is one of the region’s leading personal injury law firms.