Fetus or Newborn? The Crucial Distinction in Medical Malpractice Claims
Negligence during pregnancy or childbirth can result in the death of a fetus or a newborn. The question of whether the baby was born alive determines the scope of potential compensation. A lawyer explains the legal implications.
Stillbirth and the death of a baby shortly after birth are devastating outcomes that sometimes raise suspicions of medical malpractice. Unidentified fetal distress, ignored complaints, delays in performing a cesarean section, or insufficient monitoring may justify an investigation into the medical staff's conduct. However, a tragic result alone does not prove malpractice. To establish a claim, one must demonstrate that the treatment deviated from accepted medical standards and that there is a causal link between that deviation and the death of the fetus or newborn.
Once liability is established, one detail fundamentally changes the structure of the claim: whether the fetus was born without signs of life or was born alive and died subsequently. From the parents' perspective, both situations involve profound loss. From a legal perspective, however, the question of whether the baby was born alive creates two distinct types of claims regarding the identity of the plaintiffs and the heads of damage.
Who is the Injured Party?
The Legal Capacity and Guardianship Law states that "every person is capable of rights and obligations from birth until death." When a fetus is born without signs of life, it has not yet acquired legal capacity. Therefore, a claim cannot be filed in its name, and no estate is created. In such cases, the claim is filed by the parents for personal damages. The primary head of damage is non-pecuniary: the pain, grief, and trauma suffered by the parents. The mother may also claim for physical or mental harm, loss of earnings, medical expenses, and psychological treatment, provided these are proven to stem from the event.
There is a clear limitation: when a fetus is born without signs of life, one cannot claim compensation in its name for shortening of life expectancy or loss of earning capacity in the "lost years," as the law does not recognize it as an independent legal entity.
When the Baby is Born Alive
The situation changes if the baby is born alive, even if only for a few minutes or hours. From the moment birth is completed, the child is considered to have legal capacity. If the child dies due to medical malpractice, the cause of action passes to its estate. In such cases, an estate claim can be filed to demand compensation for pain and suffering, shortening of life expectancy, medical and hospitalization expenses, burial costs, and loss of earning capacity in the "lost years." The earnings component is calculated based on rules applicable to those who died at a young age.
The amount of compensation awarded depends on the proven damages. In cases of stillbirth, compensation may reach hundreds of thousands of shekels. When a baby is born alive and dies, the claim is broader, potentially including the estate's claim, which may push total compensation above the one-million-shekel threshold. However, there is no rule stating that a live birth automatically leads to higher compensation; the amount is determined by the specific damages proven in each case.
The statute of limitations for these claims is generally seven years. It is recommended to seek legal advice as soon as possible, as exceptions that extend this period are rare and should not be relied upon.
• This article was prepared in collaboration with the Israeli legal website PsakDin
• Adv. Amit Uria specializes in medical malpractice during pregnancy and childbirth
• Ynet is a partner of the PsakDin website
