Wrongful Death of a Child

wrongful-death-of childWhen the wrongful death of a child occurs in the womb or soon after birth, their entire family is stunned and traumatized.  Parents might have questions for the doctors or other healthcare providers, but sometimes they’re not satisfied with the answers they get.  That’s when they come to us.  They’re suffering and grieving, and they have deep and genuine concerns.  They’re looking for straight talk and straight answers because the deaths of many babies seem so preventable.

Hawaii Wrongful Death Statute

Wrongful death is controlled by Hawaii Revised Statutes Section 633-3.  It states that a wrongful death of a child is a death caused by ” the wrongful act, neglect or default of any person.”  That’s the law of negligence. The wrongful death of a child can be caused by any act or omission  In a wrongful death case involving a newborn, the parents will bring the action on behalf of the deceased child.

Birth Negligence

No state has a statute that defines negligence, particularly in the context of the death of a child soon after birth.  Negligence is simply defined by the common law as the failure to act as a reasonably prudent person would act under the same or similar circumstances.  Negligence doesn’t involve intentional acts.  It involves careless acts or omissions.  Those acts or omissions might be attributable to physicians, hospital staff or even hospitals themselves for inadequate oversight.

Statute of Limitations

Every state has a time limit within which an action for injury or death must be brought.  Hawaii has a strict statute of limitations for the death of a minor.  The wrongful death of a child must be filed within two years of the baby’s date of death.  It can’t be filed more than six years after the date of the alleged negligence was or should have been discovered.  Failure to file a lawsuit involving the death of a baby within the prescribed statute of limitations can operate to forever bar the parents from seeking compensation for their baby’s death.  There are other reasons for timeliness too.  Witnesses and evidence disappear.  Memories fade, and events tend to get blurry over time.  Time becomes critical in the prosecution of any wrongful death case.

How Infant Wrongful Death Cases are Evaluated

An attorney evaluating an infant wrongful death case will thoroughly review and evaluate each and every medical record involving the infant’s prenatal care, birth and delivery.  Because the law of negligence governs these cases, the attorney will evaluate the applicable standard of care and determine whether there might have been  a deviation from that standard of care.  This requires extensive legal and medical training and research.  Certification of negligence by an expert isn’t a prerequisite to filing a wrongful death case involving a newborn in Hawaii, but eventually, expert testimony on the standard of care and liability will be required.

Birth Injuries That May Cause a Baby’s Death

Sufficient oxygen is critical to a healthy and live baby being born.  Oxygen deprivation not only causes brain injuries, but it can also be fatal.  Reduced blood flow also deprives a baby’s body of oxygen.  If blood flow is impeded, the brain and heart can stop functioning.  Other conditions that can cause the death of a baby include but aren’t limited to:

  • Hemorrhage
  • Eclampsia
  • Placenta previa or abruption
  • Jaundice that goes untreated
  • Traumatic damage to the baby’s brain or spinal cord

Wrongful Death Actions for Stillborn Children

Our firm might become involved in the death of an unborn child.  Hawaii has recognized that a majority of states have supported a cause of action on behalf of a viable fetus.  A Hawaii court held that if a live baby can sue for injuries sustained while a fetus, denying a cause of action for acts or omissions that caused the death of a viable fetus would be an injustice.  It’s reasoning was that denial of such a cause of action would permit a wrongdoer to increase rather than decrease the consequences of their negligence.  The pivotal issue of the viability of a fetus must be decided on a case-by-case basis though.

Davis Levin Livingston has produced an enviable success rate through the experience, knowledge and dedication of our birth attorneys. We’re sensitive to the fact that it’s a difficult phone call  to make, but contact us if you believe that a family member has died because of the negligence of somebody else.  You’ll get a thorough case evaluation.