 The four previous posts in this series of blogs have focused on children who survive, injuries like hypoxic-ischemic encephalopathy, cerebral palsy, kernicterus, and shoulder dystocia. That was not an accident of topic selection. It reflects a hard economic reality created by Texas law when a newborn dies during pregnancy, delivery, or shortly after birth, rather than surviving with an injury.
This particular post attempts to explain why families in that situation may find it difficult to find a Texas medical malpractice attorney who will take their case. These families deserve an honest explanation of why so many firms, including mine, decline these cases far more often than cases involving a surviving child. It is my intent to explain that reality directly. What Damages Are Available When a Newborn Dies From Medical Negligence in Texas? Texas law provides two separate legal vehicles after a death caused by medical negligence, and they recover different things for different people. Neither one was built with an infant's death specifically in mind, and that mismatch is where the practical difficulty begins. The Texas Survival statute allows the deceased's own personal injury claim to continue after death, but only for damages the deceased personally experienced before dying, which, in the case of a baby are primarily conscious pain and suffering and medical expenses that were actually incurred. For a newborn who dies at or shortly after birth, this claim is often minimal, since the window during which the infant personally experienced anything compensable may be brief or difficult to establish. The Texas Wrongful Death Act, by contrast, is a separate claim belonging to the parents themselves, as statutory beneficiaries, for their own losses, which can include both non-economic damages, such as mental anguish and loss of companionship, and, in theory, economic damages tied to the pecuniary value of what the child would have contributed to the family. Can a Family Recover Economic Damages for a Newborn's Lost Future Earnings? In theory, yes, through the Wrongful Death Act's pecuniary loss theory. However, in practice, this path is nearly impossible to walk for a newborn and understanding why requires looking at what this kind of proof actually demands. In Pediatrics Cool Care v. Thompson, 638 S.W.3d 218, 237 (Tex. App. 2021), rev'd, 649 S.W.3d 152 (Tex. 2022), the 14th Court of Appeals in Houston affirmed a jury's award of pecuniary damages to the parents of a 14-year-old minor as wrongful death beneficiaries. The record in that case was substantial. The minor helped care for her younger half-brother, was described in testimony as wanting to be “a baby doctor” because she “loved children,” and her parents testified she planned to take care of them as they grew older. An economist retained by the family calculated the discounted present value of her pecuniary loss under three separate scenarios, high school graduate, college graduate, and obstetrician-gynecologist, using Bureau of Labor Statistics data, an estimated 33-year work life, and an estimated 81-year life expectancy, arriving at figures ranging from 1.7 million dollars to 4.3 million dollars. The Court of Appeals held this combined testimony legally and factually sufficient to support the jury's award, reasoning that a jury may draw on its own knowledge and experience in assessing pecuniary loss and that the defendants' criticisms of the economist's testimony went to weight rather than admissibility. The Texas Supreme Court later reversed the judgment, but on grounds unrelated to this issue: the court held that the plaintiffs' causation expert failed to establish the required but-for causation standard for the underlying malpractice claim, and the opinion did not reach or disturb the Court of Appeals' reasoning on pecuniary damages. The reversal means the family ultimately recovered nothing, and this case should not be cited as settled, controlling precedent on future earnings evidence. What this case appears to illustrate is the kind of evidence that is required in order to support a claim for the future lost wages of a child, which are:
A newborn has none of these things. There is no caregiving history, no stated career goal, no test of general learning ability, and no expressed intention about supporting parents later in life. The evidentiary foundation this claim requires does not merely weaken as a child's age drops. At the point of a newborn, it does not exist. What Does This Mean for the Total Value of a Newborn Wrongful Death Case? The realistic maximum recovery in most newborn wrongful death cases lands at or near a fixed statutory ceiling, regardless of how clearly the medical negligence can be proven. If a single Defendant is found responsible, whether an individual physician or a hospital, non-economic damages are capped at $250,000. If both an individual and an institution are found responsible, that ceiling rises to $500,000, combining each Defendant's separate $250,000 cap. This number does not grow with inflation. It is fixed by statute and stays fixed no matter how many years the case takes to resolve. Because a newborn wrongful death case typically has no significant economic damages to add on top of it, this fixed non-economic ceiling usually is the case, not just one piece of it. That sounds like a lot of money, but the problem is that Texas medical malpractice cases require substantial upfront investment from the firm handling them: a standard of care expert, a causation expert, often additional specialists, and years of litigation before any resolution. On a contingency fee basis, the firm advances all of that itself and recovers nothing unless the case succeeds. Run those numbers against a $250,000 or $500,000 ceiling, subtract the firm's contingency percentage and its advanced case expenses, and what is left for the family is often startlingly small given everything the case demanded to get there. That gap, not indifference to the loss, is why a firm cannot responsibly take on a case like this. The arithmetic does not work, no matter how strong the underlying negligence claim is. This is the honest reason these cases are declined far more often than cases involving a child who survives with a lasting injury. A surviving child's future medical and care costs are uncapped economic damages, and that uncapped category is frequently what makes a case viable even under the identical non-economic cap. What Should a Family Do If They Believe Their Newborn's Death Was Caused by Medical Negligence? Consult an attorney regardless of this general pattern, because the specific facts of a case can change this analysis. A longer period of conscious survival before death can increase the value of a survival claim. Evidence supporting gross negligence can open the door to exemplary damages calculated differently than compensatory damages. Multiple viable Defendants, or a case with unusually well-documented economic contribution evidence, can change the picture entirely. Texas Health & Safety Code §241.154 requires a hospital to provide medical records within 15 days of a written request, and requesting the complete labor, delivery, and neonatal record is a reasonable first step regardless of whether a case ultimately proceeds. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve a preliminary expert report on each Defendant within 120 days of the date on which that Defendant filed their Answer to a lawsuit. This preliminary expert report is required to explain the standard of care, how it was breached, and how the breach caused the injury based on the information then available. A decision not to pursue litigation is not the same as a decision that nothing wrong happened, and a family facing this loss deserves a direct, honest answer about their legal options rather than false hope. Can We Help? Generally, no. As stated at the beginning of this blog, our firm does not take these cases. While every matter depends on its own facts, our experience has been that litigation in cases like this can place a heavy burden on families, both emotionally and in terms of time, and the outcome has often not justified that toll. At The Borah Law Firm, PLLC, we handle medical malpractice cases in Texas, but not cases of this type. Frequently Asked Questions Can I sue if my newborn died from medical negligence in Texas? You can pursue a survival claim, a wrongful death claim, or both, but Texas damage caps and the practical unavailability of economic damages for an infant often make these cases economically difficult to pursue on a contingency fee basis, even when the underlying negligence can be proven. Why are damages capped in Texas medical malpractice cases involving a child's death? Texas law limits the amount that can be recovered in medical malpractice cases. In a child’s death case, those limits can be especially difficult for families because the loss is so heartbreaking, yet the law may still cap what can be recovered no matter how serious the mistake was. That means the legal recovery may not fully reflect the depth of the family’s loss. Can a family recover money for a child's lost future earnings in Texas? It is theoretically possible under the Wrongful Death Act, but it requires evidence such as a testable general learning ability, an academic record, and stated goals that an infant cannot provide. This kind of claim becomes more difficult to prove the younger the child is, and is generally not available for a newborn. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://texas.public.law/statutes/tex._civ._practice_and_remedies_code_section_74.303 Comments are closed.
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