Can a Wrongful Death Claim Be Filed for a Stillborn Child in Arizona

TL;DR

Yes, in Arizona, parents can file a wrongful death claim for a stillborn child. The state’s wrongful death statute, A.R.S. § 12-611, explicitly defines a “person” to include an unborn child at any stage of development. For a claim to be successful, it must be proven that the fetus was viable—capable of surviving outside the womb—at the time of the injury and that the death was caused by the wrongful act or negligence of another party, typically a healthcare provider.

Key Highlights

Arizona Law is Clear: A.R.S. § 12-611 specifically grants the right to file a wrongful death lawsuit for an “unborn child.”
Viability is a Key Factor: The central element of the case is demonstrating that the fetus was medically viable when the negligent act occurred.
Negligence Must Be Proven: The parents must show that a medical professional’s actions deviated from the accepted standard of care, directly causing the stillbirth.
Parents Can Recover Damages: Compensation is available for the parents’ emotional pain, suffering, grief, and loss of companionship.
Strict Time Limits Apply: Arizona has a two-year statute of limitations for filing a wrongful death claim, making prompt action essential.

The loss of a child is a profound tragedy, and when it occurs before birth, families are often left with immense grief and unanswered questions. In the United States, stillbirth affects about 1 in 175 births, with nearly 21,000 babies stillborn each year, according to the Centers for Disease Control and Prevention (CDC). For families in Arizona, this heartbreaking event is compounded by legal and financial questions, especially when they suspect that a medical error contributed to their loss. The question of legal recourse becomes a critical concern for those seeking accountability and justice.

Unlike many other states that have complex or restrictive laws regarding fetal death, Arizona provides a clear legal path for parents. The state’s legislature has specifically addressed this issue within its wrongful death laws. Under Arizona Revised Statute § 12-611, the definition of a “person” for whom a wrongful death action can be brought includes an “unborn child.” This statutory language is significant because it removes a major legal hurdle that exists elsewhere, directly empowering parents to seek justice for their unborn child.

While the law permits such a claim, it does not guarantee an outcome. The ability to hold a negligent party accountable depends on meeting specific legal and medical standards. The case will hinge on demonstrating that the unborn child was viable and that a healthcare provider’s failure to meet the required standard of care was the direct cause of the death. Understanding these requirements, the types of evidence needed, and the legal process involved is the first step for any family considering this difficult but necessary path toward answers and resolution.

Understanding Arizona’s Wrongful Death Statute (A.R.S. § 12-611)

At the heart of any stillbirth wrongful death claim in Arizona is the specific language of the state’s law. Statutes across the country vary widely on this issue. Some states do not recognize an unborn fetus as a “person” for civil liability purposes, while others only allow a claim if the child was born alive and then died. Arizona’s law is one of the more progressive in the nation in its protection of the unborn in civil cases.

The Legal Definition of “Person” in Arizona

The most important part of the Arizona statute is its definition. A.R.S. § 12-611 states that a wrongful death action can be brought when a person’s death is caused by a wrongful act, neglect, or default. The statute goes on to define “person” as including “an individual and an unborn child at any stage of its development.”

This inclusion is a game-changer. It means that, legally, the loss of a viable fetus can be treated with the same gravity as the loss of a child who has been born. Parents do not have to prove the child took a breath to have legal standing. This legislative decision reflects a public policy that values the life of a viable unborn child and provides a remedy for parents when that life is cut short due to someone else’s negligence.

The Concept of Fetal Viability

While the statute includes an “unborn child at any stage,” courts have generally interpreted this to mean a viable fetus. Viability is the medical and legal term for the point at which a fetus is capable of surviving outside the womb, with or without medical assistance.

Medical Definition: Medically, viability is often considered to be around 23 to 24 weeks of gestation. At this stage, the lungs have developed enough to potentially function, and medical technology can support the baby’s life.
Legal Application: In a wrongful death case, your legal team must establish that the fetus had reached the point of viability before the negligent act occurred. This is not just about the gestational age but involves a detailed analysis of the fetus’s specific development. Medical records, ultrasound reports, and expert testimony from perinatologists or neonatologists are used to build the case for viability. The defense may challenge this point, making it a critical battleground in the litigation.

Proving viability is essential because it establishes that the defendant’s negligence caused the death of a being that could have otherwise lived.

Who is Eligible to File the Claim?

Arizona law is also specific about who can bring a wrongful death action. The claim can be filed by or on behalf of certain surviving family members. For a stillborn child, the claim is typically filed by:

The surviving parent or parents. Both the mother and father have a right to recover damages for their loss.
A personal representative of the unborn child, appointed by the court to act on behalf of the parents.

The lawsuit is brought for the benefit of the parents to compensate them for their profound personal loss. This is different from a “survival action,” which would be brought on behalf of the deceased’s estate to recover for the deceased’s own pain and suffering before death. In stillbirth cases, the claim is almost always a wrongful death action focused on the parents’ damages.

Proving Negligence: The Core of a Stillbirth Claim

Having the legal right to file a claim is only the first step. To succeed, you must prove that the stillbirth was the direct result of medical negligence. A tragic outcome alone is not enough to win a lawsuit. The family must demonstrate that a healthcare provider made a mistake that another reasonably competent provider in the same situation would not have made. This is established by proving the four elements of medical malpractice.

The Four Elements of Medical Malpractice

Every medical negligence case, including those involving stillbirth, must satisfy four legal conditions.

Duty: You must show that a professional relationship existed between the healthcare provider (e.g., an obstetrician, nurse, or hospital) and the patient (the mother and her unborn child). This establishes that the provider had a legal duty to provide care that meets the accepted medical standard. This is usually the easiest element to prove.
Breach: This is the most contested element. You must prove that the healthcare provider breached their duty by acting (or failing to act) in a way that fell below the accepted standard of care. This means their conduct was not what a reasonably prudent and skilled healthcare professional in the same specialty would have done under similar circumstances.
Causation: You must draw a direct link between the provider’s breach of duty and the stillbirth. It must be shown that “but for” the provider’s negligence, the fetus would have survived. The defense will often argue that the stillbirth was caused by an unpreventable complication, not a medical error.
Damages: You must demonstrate that you suffered legally recognized harm as a result of the death. In a stillbirth case, the damages are primarily the parents’ emotional pain, anguish, and loss of companionship.

Common Examples of Medical Negligence Leading to Stillbirth

Medical errors that can lead to a stillbirth can occur at any point during pregnancy, labor, or delivery. An experienced legal team will work with medical experts to review every detail of the prenatal and hospital records to identify potential breaches of care.

Failure to Monitor Fetal Distress: Not properly reading or responding to fetal heart rate monitors that indicate the baby is in distress (e.g., lack of oxygen).
Mismanagement of High-Risk Pregnancies: Failing to properly manage conditions like preeclampsia, gestational diabetes, or high blood pressure, which can pose a serious risk to the fetus.
Delayed or Improperly Performed C-Section: When a C-section is medically necessary to save the baby, an unreasonable delay can be fatal.
Failure to Diagnose and Treat Infections: Infections in the mother, such as Group B streptococcus (GBS) or listeriosis, can be passed to the fetus and cause death if not treated promptly.
Mishandling Umbilical Cord Issues: Problems like a prolapsed cord (where the cord drops into the birth canal ahead of the baby) or a nuchal cord (wrapped around the neck) require immediate and proper intervention.
Placental Abruption: Failure to recognize the signs of the placenta detaching from the uterine wall, which cuts off the baby’s oxygen and nutrient supply.
Medication Errors: Prescribing a drug to the mother that is known to be harmful to the fetus.

The Role of Medical Experts

It is impossible to win a stillbirth wrongful death case without the support of credible medical experts. These experts, typically board-certified obstetricians, maternal-fetal medicine specialists, or neonatologists, play a crucial role. They will:

Review all medical records to determine the applicable standard of care.
Provide a professional opinion on whether the defendant healthcare provider breached that standard.
Testify about how the breach of care directly caused the stillbirth.
Help the jury understand complex medical concepts in a clear and compelling way.

In Arizona, you are required to have this expert support from the very beginning. The law requires filing a preliminary expert opinion affidavit with the court, which is a sworn statement from a qualified expert attesting that there is a valid basis for the malpractice claim.

Distinguishing Between Wrongful Death and Other Related Claims

When a stillbirth occurs due to medical negligence, there may be more than one type of legal claim available. It is important to understand the distinctions, as they affect who can file the claim and what kind of compensation can be sought. The primary claim is for the wrongful death of the unborn child, but the mother may have her own separate claim.

The Mother’s Claim for Medical Malpractice

The wrongful death claim is filed on behalf of the parents for the loss of their child. Separately, the mother can file a medical malpractice claim for any physical or emotional injuries she personally sustained as a result of the negligent care.

For example, consider a situation where a doctor’s negligence during delivery leads to a stillbirth. That same negligence might have also caused the mother to suffer a uterine rupture, severe hemorrhaging, or the need for an emergency hysterectomy. These are physical injuries for which she can seek compensation. Her claim would cover:

Medical bills for her own treatment.
Lost wages if she was unable to work.
Pain and suffering related to her physical injuries.
Emotional distress from her own traumatic experience.

This claim is distinct from the wrongful death claim, which is focused on the grief and loss associated with the child’s death.

Negligent Infliction of Emotional Distress (NIED)

In some circumstances, a claim for Negligent Infliction of Emotional Distress (NIED) might be possible. This type of claim focuses on the severe emotional shock and trauma experienced by a person who witnesses a horrific event caused by someone else’s negligence. In the context of a stillbirth, a father who was present for the delivery and witnessed the negligent acts that led to the death of his child might have a claim for NIED. These claims have very specific requirements and are not always applicable, but they are another potential avenue for recovery.

Why the Distinction Matters for Compensation

Separating these claims is crucial for ensuring the family receives full and fair compensation.

Wrongful Death Damages: These are intended to compensate the parents for the loss of their relationship with their child. The focus is on their grief, sorrow, and the loss of love, comfort, and society.
Mother’s Malpractice Damages: These are intended to compensate the mother for her own physical and emotional injuries. This includes tangible costs like medical bills and intangible harm like her personal pain and suffering.

By pursuing all valid claims, a family can address the full scope of the harm they have endured. An attorney experienced in these cases will be able to identify all potential claims and structure the lawsuit accordingly to maximize the chances of a just recovery.

Calculating Damages in a Stillbirth Wrongful Death Case

Placing a monetary value on the loss of a child is an impossible and painful task. However, the civil justice system uses financial compensation, or “damages,” as the method for holding negligent parties accountable and acknowledging the harm done to a family. In an Arizona stillbirth case, damages are primarily non-economic, reflecting the profound emotional impact of the loss.

Understanding Non-Economic Damages

Because an unborn child has no financial history or dependents, the damages in a wrongful death claim are not based on lost income. Instead, they focus on the intangible but very real losses suffered by the parents. Arizona juries are asked to consider the following:

Sorrow, Grief, and Mental Anguish: This is compensation for the immense emotional suffering the parents have experienced and will continue to experience for the rest of their lives.
Loss of Love, Society, and Companionship: This acknowledges the loss of the unique parent-child relationship that was taken away. It includes the loss of the comfort, guidance, and affection that the child would have provided throughout their life.
Loss of the Child’s Future Relationship: This component considers the hopes and dreams the parents had for their child and the future they planned together as a family.

These damages are subjective and there is no formula for calculating them. A skilled attorney will present a compelling case by using testimony from the parents, family members, and mental health experts to help a jury understand the depth of the family’s loss.

Economic Damages (When Applicable)

While non-economic damages form the bulk of the compensation, some economic damages may also be recoverable. These are the tangible, out-of-pocket costs associated with the stillbirth.

Medical Bills: Any medical expenses related to the negligent care during pregnancy and delivery that would not have been incurred otherwise.
Funeral and Burial Expenses: The costs associated with laying the child to rest can be included in the claim.
Psychological Counseling: The cost of therapy or counseling for the parents to help them cope with the grief and trauma can also be claimed as a medical expense.

The Absence of Future Lost Earnings

A key difference between a stillbirth claim and the wrongful death of an adult is the inability to claim future lost earnings. When a 40-year-old breadwinner is killed, their family can sue for the income they would have earned over the rest of their career. For an unborn child, any projection of future income would be purely speculative, so it is not a component of damages.

Arizona’s Lack of Caps on Damages

A significant advantage for families in Arizona is that the state constitution prohibits caps on damages in personal injury and wrongful death cases. Many states have passed laws that limit the amount of non-economic damages a jury can award, particularly in medical malpractice cases. In Arizona, there is no such limit. This means a jury has the freedom to award an amount that they believe fully and fairly compensates the parents for the magnitude of their loss.

The Legal Process: Steps to Filing a Claim in Arizona

Pursuing a wrongful death claim for a stillborn child is a formal legal process with strict rules and deadlines. Understanding the key steps can help families know what to expect as they move forward.

The Statute of Limitations

The most critical deadline is the statute of limitations. In Arizona, a wrongful death lawsuit must be filed within two years of the date of the stillbirth. If you miss this deadline, the court will almost certainly bar your claim forever, regardless of how strong your case is.

There is a narrow exception known as the “discovery rule,” which can sometimes extend the deadline if the negligence was not reasonably discoverable at the time of the death. However, relying on this exception is risky. The best course of action is to speak with an attorney as soon as possible after the loss to ensure your rights are protected.

Gathering Essential Evidence

A strong case is built on strong evidence. Your legal team will immediately begin the process of collecting and preserving all relevant information, which includes:

Complete Medical Records: This is the most important evidence. It includes all of the mother’s prenatal records, labor and delivery records, fetal monitoring strips, ultrasound images, and hospital notes.
Autopsy Report: If an autopsy was performed on the baby, the report can provide crucial information about the cause of death.
Placental Pathology Report: The placenta is often sent for analysis after a stillbirth, and the pathology report can reveal infections, abnormalities, or signs of oxygen deprivation.
Witness Statements: Statements from the father or other family members who were present during labor and delivery can help establish a timeline of events.

The Preliminary Expert Opinion Affidavit

As mentioned earlier, Arizona law (A.R.S. § 12-2603) has a specific requirement for medical malpractice cases. Before the case can proceed far, the plaintiff’s attorney must file an affidavit from a qualified medical expert. This expert must:

Be in the same medical specialty as the defendant provider.
Have reviewed all the relevant medical records.
State, under oath, their opinion that the defendant breached the standard of care and that this breach caused the stillbirth.

This requirement is designed to filter out frivolous lawsuits and ensures that every claim is supported by a credible medical opinion from the start.

From Filing the Complaint to Potential Settlement or Trial

Once the initial investigation is complete and the expert affidavit is secured, the formal legal process begins.

Filing the Complaint: Your attorney will draft and file a legal document called a complaint with the court. This document officially starts the lawsuit, names the defendants (doctor, hospital, etc.), and outlines the allegations of negligence.
Discovery: This is the longest phase of the lawsuit. Both sides exchange information and evidence. It involves written questions (interrogatories), requests for documents, and depositions, which are sworn, out-of-court testimonies from the parents, defendants, and expert witnesses.
Mediation and Settlement: Most medical malpractice cases do not go to trial. Instead, they are resolved through a settlement. Often, the parties will attend mediation, where a neutral third party helps them negotiate a resolution.
Trial: If a settlement cannot be reached, the case will proceed to trial. At trial, both sides will present their evidence and arguments to a jury, who will then decide whether the defendants were negligent and, if so, the amount of damages to award.

Finding the Right Legal Representation for Your Case

The decision to pursue a wrongful death claim is a deeply personal one, and it is not a journey you should take alone. The complexity of these cases, both legally and medically, requires the guidance of a highly specialized attorney. Choosing the right lawyer is one of the most important decisions you will make.

Why You Need a Specialized Attorney

A general personal injury lawyer is not equipped to handle a stillbirth medical malpractice case. You need an attorney and a law firm with specific, proven experience in this niche area of law. A specialized attorney will have:

A deep understanding of Arizona’s wrongful death and medical malpractice statutes.
A network of top-tier medical experts (obstetricians, perinatologists, etc.) ready to review your case.
The financial resources to fund the case, as litigation costs, especially for experts, can be substantial.
Trial experience and a reputation for being willing to take cases to court if a fair settlement is not offered.

Questions to Ask a Potential Attorney

When you consult with a lawyer, do not be afraid to ask direct questions to gauge their experience and approach.

How many stillbirth or birth injury cases have you handled specifically in Arizona?
What were the outcomes of those cases?
Can you tell me about the medical experts you typically work with on these cases?
How will you communicate with our family throughout this process?
What is your fee structure? (Most reputable firms work on a contingency fee basis, meaning you pay nothing unless they win your case).

The Importance of a Compassionate and Tenacious Advocate

Beyond legal skill, you need a legal team that understands the emotional weight of your loss. Grieving parents need an advocate who is not only a tenacious fighter in the courtroom but also a compassionate and supportive guide. Your arizona wrongful death attorney should be someone you trust, who listens to your concerns, and who is dedicated to honoring the memory of your child by pursuing justice on your behalf.

Conclusion

In Arizona, the law recognizes the profound loss of a stillborn child and provides a legal path for parents to seek accountability when that loss is caused by medical negligence. A.R.S. § 12-611 allows parents to file a wrongful death claim for their unborn child, provided the fetus was viable and the negligence of a healthcare provider can be proven. Successfully making this claim requires demonstrating a breach in the standard of care, directly linking that breach to the death, and articulating the immense non-economic damages the parents have suffered.

The legal journey is challenging and emotionally taxing. It involves strict deadlines, complex medical evidence, and the testimony of expert witnesses. Distinguishing between the wrongful death claim for the child and a separate malpractice claim for the mother is essential for ensuring all aspects of the family’s harm are addressed. While no amount of money can replace a child, holding a negligent party responsible can provide a sense of justice, closure, and financial stability for a family that has been shattered.

If your family has suffered the devastating loss of a stillbirth and you suspect a medical error was a factor, understanding your legal rights is a critical first step. The two-year statute of limitations in Arizona makes it imperative to act without delay. Contact a qualified Arizona medical malpractice attorney who specializes in stillbirth cases to discuss the specifics of your situation in a confidential consultation. Taking action can not only provide answers for your family but may also help implement changes in medical practice that prevent similar tragedies from happening to others. Contact us for free evaluation today.

Can a Wrongful Death Claim Be Filed for a Stillborn Child in Arizona?