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November 29, 2023

Maternal Wrongful Death: Federal and State Standards

Are You Prepared to Analyze Your Next Case?

By Carrie J. Barber and Jack T. Cook

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The United States ranks 65th among industrialized nations in terms of pregnancy-related death. “Pregnancy-related death” is defined by the Pregnancy Mortality Surveillance System (PMSS) as a death while pregnant or within one year of the end of pregnancy from any cause related to or aggravated by the pregnancy. Leading causes of pregnancy-related deaths in the United States include cardiovascular conditions such as hypertensive disorders, maternal infection or sepsis, hemorrhage, and thrombotic pulmonary or other embolisms.

In 2020, 861 women died of maternal causes in the United States, compared to 754 in 2019. The maternal mortality rate in 2020 was 23.8 deaths per 100,000 live births, compared with a rate of 20.1 in 2019. The 2020 maternal mortality rate was more than double the Healthy People 2020 target of 11.4 per 100,000 live births. It’s estimated that 50% of pregnancy-related deaths are preventable.


The Joint Commission's Response to the Rise in Preventable Pregnancy-Related Deaths

As a result of the rise in maternal mortality associated with maternal hemorrhage and severe hypertension/preeclampsia (two of the top leading causes of pregnancy-related death), standards applicable to Joint Commission-accredited hospitals (effective July 1, 2020) focus on prevention, early recognition, and timely treatment.

The Joint Commission has two standards related to maternal safety within the Provision of Care, Treatment, and Services chapter that are summarized below.

Standard: Reduce the Likelihood of Harm Related to Maternal Hemorrhage

Prevention, Early Recognition, and Management

This standard requires Joint Commission-accredited hospitals to perform an antepartum (prenatal), intrapartum (during labor), and postpartum (after delivery of the placenta) hemorrhage risk (re)assessment. These standardized risk assessments are performed in an effort to identify patients at medium or high risk for obstetrical hemorrhage and to guide necessary interventions. Obstetrical hemorrhage risk assessments should be integrated into the obstetrical hemorrhage policy and procedure. Interventions include, but are not limited to: transfer to an appropriate level of care, type and screen or type and cross-match on labor admission for blood products, and multidisciplinary team huddles (briefings). Additional interventions are discussed later in this article.

Additionally, a stage-based management plan should be adopted that requires the performance of quantitative blood loss (QBL) measurements for every delivery. With the use of a standardized stage-based management plan, best practice interventions are prompted and specific to the hemorrhage stage (stage 1-3). Lastly, a standardized hemorrhage medication kit and supply cart should be readily accessible on every unit caring for obstetrical patients (e.g., labor and delivery, emergency department, surgery, and the intensive care unit).


Multi-disciplinary, role-specific obstetrical hemorrhage education and simulation drills (including all members that care for obstetrical patients) should occur at the time of new hire orientation, whenever there are changes to the policy or procedure, or every one to two years. Team de-briefing should occur after every simulation drill to identify opportunities for improvement in clinical management. Additionally, every organization should have established criteria for identifying obstetrical hemorrhage cases requiring quality review. The quality review process serves as a quality improvement effort and guides future continuing education. Lastly, patient education should be provided specific to hemorrhage risk factors, as well as signs and symptoms of hemorrhage that must be reported.

Standard: Reduce the Likelihood of Harm Related to Maternal Severe Hypertension/Preeclampsia

Prevention, Early Recognition, and Management

This standard requires Joint Commission-accredited hospitals to develop procedures for (re)measuring blood pressure and to integrate standardized criteria for the diagnosis of severe hypertension (systolic blood pressure [SBP] ≥ 160, diastolic blood pressure [DBP] ≥ 110). The procedure should include evidence-based management such as the administration of first-line antihypertensive medications (intravenous [IV] labetalol, IV hydralazine, or oral nifedipine per established criteria). Additionally, the use of magnesium sulfate for seizure prophylaxis in patients with severe hypertension should be incorporated into the procedure.


Consistent with the maternal hemorrhage standard, role-specific multidisciplinary education, simulation training, and team de-briefing is required for all members of the team caring for obstetrical and postpartum patients per the same frequency. Organizational review of severe hypertension/preeclampsia cases as part of a quality improvement process is required. Additionally, printed patient and family education should be disseminated focusing on risk factors for severe hypertension/preeclampsia, as well as signs and symptoms that must be reported.

The Centers for Medicare and Medicaid Services (CMS) Response

In December 2021, a Maternity Care Action Plan was introduced by CMS to improve maternal health. The focus of this action plan is on improving access to and quality of care during pregnancy, childbirth, and the postpartum period. Proposals and steps in progress include, but are not limited to, implementing quality measurements. For example, hospitals are required to report to CMS if they have participated in a maternity care quality collaborative, and if so, whether they have implemented best practices to improve maternity care quality, such as initiatives to reduce maternal hemorrhage. CMS’ Hospital Inpatient Quality Reporting Program reduces payment to hospitals that fail to meet program requirements, including the submission of quality data.

The Centers for Disease Control and Prevention Response

In response to the rise in maternal mortality, the CDC has a number of initiatives focused on two of the top causes: obstetrical hemorrhage and hypertension.

Perinatal Quality Collaboratives (PQCs)

The CDC has formed multi-state networks of teams called Perinatal Quality Collaboratives (PQCs). These PQCs work to improve the quality of care for mothers. PQC members identify healthcare processes that need to be improved and use the best available methods to make changes in collaboration with participating hospitals.

Examples of PQC initiatives include the following, designated to reduce severe pregnancy complications associated with hypertension and hemorrhage:

  1. Hypertension: Within participating hospitals, a protocol for event-specific debriefings for every severe pregnancy hypertensive event should be implemented. This quality improvement initiative is associated with an increase in the number of perinatal care teams administering antihypertensive medications within the recommended 60 minutes from the time of diagnosis.
  2. Hemorrhage: Within participating hospitals, The California Maternal Quality Care Collaborative’s Improving Health Care Response to Obstetric Hemorrhage toolkit should be implemented. This tool kit, like many others from national organizations, is based on the National Partnership for Maternal Safety Consensus Bundle on Obstetric Hemorrhage; hospitals that are not currently participating in a PQC should review the bundles available and select the one that works best for their organization.

The CDC Levels of Care Assessment Tool (CDC LOCATe)

This is a web-based tool to help states create standardized assessments specific to levels of maternal and neonatal care based on the most recent guidelines and policy statements issued by the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the Society for Maternal-Fetal Medicine.

The determination of the appropriate level of care (level I–IV) to be provided by a given facility can be guided by CDC LOCATe. Hospitals should have policies that promote and support a regionalized system of perinatal care.

The American College of Obstetricians and Gynecologists Response

The American College of Obstetricians and Gynecologists (ACOG) has a long-standing history of being committed to addressing the rise in maternal morbidity. In 2001, the Safe Motherhood Initiative (SMI) was established through collaborative efforts between ACOG and the New York State Department of Health (NYSDOH). The SMI reviewed cases of reported hospital-based maternal deaths, which led to protocol changes and efforts to increase the awareness of risk factors contributing to maternal morbidity.

In 2013, the SMI broadened their scope and began working with obstetric hospitals in various states to develop and implement standard approaches for handling obstetric emergencies associated with maternal mortality. SMI maternal safety bundles, such as the obstetrical hemorrhage and the severe hypertension in pregnancy bundles, were introduced in 2020. These maternal safety bundles focus on prevention, early identification, and early treatment in an effort to reduce maternal mortality.

Analyzing Maternal Wrongful Death Cases

Every hospital organization should have a quality and risk management department involved in root cause analysis for every maternal death case. Maternal deaths are reportable to the state department of health and should be filed within an adverse event reporting system. There is an existing problem with underreporting and misclassification of maternal deaths. It is crucial that specific information is recorded and reported. For example, it’s important to establish pregnancy status, as well as timing and cause of death, in an effort to identify maternal death. There is significant variation in identifying symptoms, signs, diseases, and methods of deciphering, and reporting cause of death. This negatively affects global coding of maternal deaths.

Review of a number of state maternal morbidity and mortality review reports found that preventable pregnancy-related deaths involved care that was not in accordance with national professionally recognized standards. There were deficiencies in care among physicians, midwives, nurses, residents, and the systems, as well as hospital, and support services.

In the realm of personal injury law, medical malpractice cases that result in the death of a patient are governed by both medical malpractice and wrongful death laws. In the event of an alleged wrongful death due to medical malpractice, the decedent’s family members may be entitled to pursue claims for monetary damages for past medical expenses, funeral expenses, loss of monetary support, loss of household services, as well as money for mental pain and suffering related to the loss of their loved one. Such cases can cost hundreds of thousands of dollars in attorney fees and costs, and feature years of complex litigation. In the event of a settlement or verdict, some states require reporting of any settlement or verdict for potential disciplinary action through the Board of Medicine or Board of Nursing, and sometimes for reporting on publicly searchable online practitioner profiles. As a starting point, the retained lawyers will hire medical and nursing experts to perform a root-cause analysis of the maternal death to determine if it was the result of deviations from the standard of care.


When reviewing a maternal wrongful death case, counsel should determine if there were contributory risk factors. Review of the following records will assist with analysis: past medical history (primary care and specialty care records), obstetrical history (prenatal records), labor, delivery, and postpartum course (labor and delivery records). Legal causation often hinges on whether or not the conduct in question caused or substantially contributed to the death. Most jurisdictions have jury instructions that make clear that negligence need only be “a cause” of death, and not “the sole cause” of death.

There are several potential pitfalls for negligence with regards to assessment, evaluation, detection, diagnosis and/or treatment of conditions that put mothers at risk for maternal death. These include failing to take a detailed and accurate history, one which asks detailed questions which could reveal that the patient is at increased risk of maternal complications, and failing to recognize presenting signs and symptoms that indicate that something may be going wrong with the pregnancy. While a mother may start the pregnancy in excellent health and without problems, issues impacting the pregnancy may begin to manifest during prenatal care, and they can be subtle. With the rise of these issues comes the need for decision making with regards to ordering diagnostic testing and/or referral to a maternal fetal medicine specialist. Finally, there may be a need to make adjustments to the treatment plan and to inform the patient of their increased risks. At each juncture, there is the capability for conduct to be within or below the standard of care, which is why each and every chokepoint must be recognized and approached with required caution.

Requests for Production

Medical records are a necessary component of any medical malpractice/wrongful death case as they represent the contemporaneous account of what occurred between the healthcare providers and patients. When recordkeeping is inaccurate, incomplete, or simply underwhelming, it could require medical and nursing experts to make assumptions about what actually transpired. Underwhelming chart entries are those which fail to paint a comprehensive clinical picture, often by omitting key details of the encounter including medical/nursing decision making. Consider a chart entry wherein a nurse is following protocol by cutting infusion of Pitocin in half in order to address contractions occurring too close together. A chart entry of “Pit down to 10” tells us clearly what the nurse did but fails to mention that it is being done in response to an abnormal finding, fails to mention that it was reported to the attending physician, and fails to reference any discussion informing the patient.

With regards to assessment and evaluation of conditions that could potentially result in maternal death, it is imperative that healthcare providers clearly document their understanding of the patient’s risks, which should include a medical history, subjective complaints, objective complaints, and any diagnostics or labs that were reviewed and considered.

Documentation counsel should request include:

  • Complete legal labor and delivery record, including all outpatient and inpatient fetal surveillance (biophysical profiles, non-stress tests, ultrasounds [written reports, tracings, and images])
  • Missing records, e.g., nursing flowsheet, health and physical (H&P), obstetrical ultrasound images, and reports
  • Delivery summary
  • Postpartum records
  • Standard unit protocols and standing orders
  • Subsequent treating records
  • Audit trails
  • Unit policy table of contents for inpatient labor and delivery, and outpatient OB/GYN offices; relevant policies and procedures counsel should request, specific to this article, includes hypertensive disorders of pregnancy, and obstetrical hemorrhage

Common Plaintiff Allegations

Plaintiffs’ attorneys have evolved over the years as many have taken advantage of online resources to educate themselves on the medicine. Regardless of their acquired knowledge, most jurisdictions require the input of medical and nursing experts so as to corroborate suspicions of medical and/or nursing negligence. In the event of a wrongful death, experts will be asked to review if the standard of care was met or not, and if not, if those deviations from the standard of care caused or substantially contributed to the maternal death.

Following are common allegations in maternal wrongful death cases:

Failure to assess antepartum, intrapartum, postpartum risk for hemorrhage

Within the prenatal record, as well as labor and delivery record, a hemorrhage risk (re)assessment should be documented. Additionally, interventions employed based on risk status should be documented on the risk assessment tool and/or within a progress note. A significant pitfall is the failure to consider historical factors or acute factors that increase the risk of hemorrhage. Very often a patient starts out low risk, but develops an increased risk throughout pregnancy and labor.

Failure to order appropriate labs

At the time an obstetrical hemorrhage is identified, STAT (not routine) labs should be ordered, including a complete blood count (CBC) and a coagulation panel. These lab studies evaluate clotting factors, platelet functions, and the ability for an individual to clot/control bleeding. Within the medical record, lab orders should be located in order history or on an order requisition form. Lab results should be located in lab reports. Critical lab values are printed on a communication and follow-up form, and a call is made from the lab to the care unit to inform of the critical lab value. The plan of care in response to abnormal lab findings should be documented in the provider and nursing progress notes.

Failure to diagnose / delayed diagnosis / failure to quantify blood loss

This occurs when estimated blood loss (EBL) is performed rather than the standard quantitative blood loss (QBL) measurement. EBL can result in underestimation of blood loss and result in failure to diagnose or a delay in diagnosis. QBL should be documented on every labor and delivery summary. Additionally, the QBL should be documented in the intake and output (I&O) record.

Failure to order appropriate medications / blood products

At the time an obstetrical hemorrhage is diagnosed, the following first-line uterotonics (medications that induce uterine contractions) should be considered: oxytocin, methergine (should be avoided in patients with hypertension), hemabate (should be avoided in patients with asthma), and/or cytotec. A second-line agent, tranexamic acid (TXA), should be considered if bleeding is not controlled with the above first-line agents. At the time a stage 2 hemorrhage is identified, two units of packed red blood cells (PRBCs) should be obtained for transfusion. The transfusion should not be delayed while waiting for the lab results, but rather, initiated based on clinical signs and symptoms. Additionally, fresh frozen plasma (FFP) should be ordered. The medications administered should be documented on the medication administration record (MAR), located in the order history, and may be documented on an obstetrical emergency event flowsheet.

Failure to establish IV access

Obstetrical care units have policies specific to labor admission, regardless of hemorrhage risk assessment. One of the procedures is placement of a large bore (16–18 gauge) IV access. At the time a stage 2 hemorrhage is diagnosed, the standard is placement of a second IV access. The two large bore IVs allow for rapid fluid and blood replacement, which are crucial to effective management of obstetrical hemorrhages. IV placement should be documented in the medical record under procedures / tasks and should link to the I&O. Variation exists specific to documentation locations dependent on the type of electronic medical record used.

Failure to plan for severe hypertension/preeclampsia based on risk factors / failure to identify high-risk pregnancy

Risk factors and the affiliated plan of care should be documented in the prenatal record. The following are risk factors for preeclampsia and should prompt early diagnostic testing and baseline assessments, such as a 24-hour urine for protein and a complete metabolic panel (CMP): history of preeclampsia in previous pregnancy, multiple gestation (being pregnant with more than one baby), chronic hypertension, pre-pregnancy diabetes, kidney disease, and in vitro fertilization.

Failure to recognize severe range blood pressures

An SBP ≥ 160 or DBP ≥ 110 is a severe range blood pressure requiring continued surveillance. The BP should be reassessed every five minutes for 60 minutes. The attending provider should be notified after one severe range BP. Blood pressure assessments should be documented within the vital signs flowsheet. The recognition of a severe BP, the communication with the provider, and follow-up plan of care should be documented in a progress note.

Failure to medically treat severe range blood pressures

If severe BP elevations persist for 15 minutes or more, treatment with first-line antihypertensive medications should be initiated within 60 minutes of the second elevated value. If two severe BPs are obtained within 15 minutes, treatment should be initiated. In addition to first-line antihypertensive medications, seizure prophylaxis with magnesium sulfate IV should be initiated. Contraindications to the use of magnesium sulfate include pulmonary edema, renal failure, and myasthenia gravis. Medication administration should be documented in the MAR, and observed in provider orders.

Failure to follow the chain of command (chain of resolution) policy

Hospital organizations and individual units have chain of command (chain of resolution) policies. These policies describe who employees should report to in the event of unresolved clinical management conflicts. For example, the nurse identifies that the attending OB/GYN physician should be involved in the care of a high-risk preeclampsia patient being managed by the midwife. The nurse has communicated the recommendation for OB/GYN physician consultation to the midwife, but the midwife refuses to communicate with the attending OB/GYN physician. If the nurse does not communicate the conflict to the charge nurse, house supervisor, or attending OB/GYN physician, the nurse has failed to follow the chain of command. Documentation of resolution conflict efforts should be documented in the progress note.

Common Defenses

Following are common defenses in maternal wrongful death cases. The most common defense seen is one which argues that the condition resulting in death could not have been predicted or prevented. While it is always superior to be able to argue that the standard of care was always met, even in instances where it was not, a defense commonly presented is that the deviations did not cause or substantially contribute to the death.

Patient was not compliant with recommended treatment or management

Common defenses presented involve negligence on the part of the patient, including failing to provide an accurate history, failing to follow instructions or recommendations regarding follow-up, failing to take medication as prescribed, or failure to report to an emergency room.

Patient’s delay in seeking care contributed to injuries/damages

A patient’s delay in initiating prenatal care, failure to initiate prenatal care, inconsistent prenatal care visits (scanty prenatal care), delay in postpartum follow-up, failure to follow up postpartum, or failure to keep scheduled appointments can result in an inability to timely diagnose a high-risk obstetrical or postpartum condition such as severe hypertension, chronic hypertension, preeclampsia, risk factors for obstetrical hemorrhage, and postpartum hemorrhage.

Patient’s pre-existing conditions contributed to injuries/damages

Specific to obstetrical hemorrhage, the following are risk factors (not inclusive): suspected placenta previa, accreta, increta, percreta (abnormal placental implantation), pre-pregnancy body mass index (BMI) >50, bleeding disorders, prior classic (vertical) uterine incision, prior uterine surgery, multiple gestation, more than four prior births, and prior postpartum hemorrhage. Risk factors increase the risk of recurrence and associated morbidity and mortality.

Obstetrical staff used appropriate judgement in decision making and treatment based on the patient’s signs and symptoms

The initial review for merit assesses compliance with nursing, medical, and hospital standards of care. Documentation reviewed within the medical records validates if care was consistent with that of a reasonable and prudent practitioner with the same level of education and training, in the same clinical circumstance.


 Developing an awareness of national and state responses to the current maternal mortality crisis and enhancing knowledge specific to obstetrical and postpartum standards of care will prepare an organization to defend its next maternal wrongful death case. Multidisciplinary efforts should be focused not only on evaluating medical negligence and seeking justice, but also on educating others in an effort to mitigate the risk of recurrence. In response to the 50% of pregnancy-related deaths that are preventable, regardless of one’s role in medical legal cases, a unified approach to influencing policy and reform in the area of maternal morbidity is essential. 

Carrie J. Barber, DNP, CNM

Barber Medical Legal Nurse Consulting, LLC, Brant Lake, NY

Dr. Carrie Barber is a certified nurse midwife and OB/GYN nurse practitioner who serves as a medical legal consultant and nursing professor in eastern New York and central Vermont. She is the founder and principal medical legal consultant at Barber Medical Legal Nurse Consulting, LLC. Dr. Barber’s clinical specialty areas include OB/GYN, midwifery, labor and delivery, postpartum, hospital administration and nursing education. Dr. Barber has successfully implemented new hospital programs, quality and process improvement initiatives, as well as new policies and procedures specific to obstetrical, postpartum, and neonatal care delivery. She can be reached at [email protected]

Jack T. Cook

Morgan and Morgan P.A., Orlando, FL

Jack T. Cook is a managing partner of Morgan & Morgan’s Birth Injury Trial Group. Mr. Cook has national litigation and trial experience having successfully tried cases to verdict from both the plaintiff and defense perspective. Mr. Cook has been recognized and honored by Martindale Hubbell with an AV-Preeminent Rating, has been certified as a member of the Multi-Million Dollar Advocates Forum, and is a proud member of The National Trial Lawyers: Top 100. In 2021, he was recognized by both the Daily Business Review and American Lawyer Magazine for his efforts in representing and advocating on behalf of those suffering from mental health disorders and/or drug addiction. Mr. Cook is a veteran of the United States Marine Corps, having served in over 40 countries while deployed as a member of the Marine Corps’ elite forward deployed units. He can be reached at [email protected].

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