A Lee County jury returned $2,000,000 in a stillbirth malpractice case this summer. The number is not the interesting part. The doctrinal channel it had to pass through, and the legislative fight over whether to widen that channel, are what should matter to anyone handling these claims.

1. There is no Wrongful Death Act claim for a stillborn fetus

Florida law draws a hard line at live birth. In Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997), the Florida Supreme Court reaffirmed that no cause of action exists under the Wrongful Death Act for the death of a stillborn fetus. In the same opinion, it recognized a separate common law action for negligent stillbirth, brought by the parents directly and in their own right. [1]

The Court also held the impact rule inapplicable to that action, so the father need not have been present at the birth and neither parent needs an accompanying physical injury to recover. That is a meaningful expansion, but it comes packaged with a meaningful restriction, discussed next.

2. The damages ceiling drives everything downstream

Recovery in a wrongful stillbirth action is limited in kind to mental pain and anguish plus medical expenses incident to the pregnancy. Florida Senate staff restated that limitation as recently as the 2026 session analyses. [2] There is no claim for lost support and services, no net accumulations, no estate claim, and no funeral damages of the sort the Wrongful Death Act would otherwise supply.

A $2 million verdict in this posture is therefore, functionally, an award of noneconomic damages to two parents. Practitioners should think about what that changes:

There is no economist to fight over. Case value turns on grief evidence, not on a life care plan or a wage table. That reshapes expert selection, the shape of the mother’s and father’s depositions, and voir dire strategy in ways that differ sharply from a birth injury case involving a surviving child.

Comparators are thin and volatile. The available data points sit far apart. In Kammer v. Hurley, a negligent stillbirth case, a jury awarded $2.5 million to each parent for mental pain and anguish, alongside modest past and future therapy expenses. [3] Two parents at $1 million each is a defensible read of the Lee County result, but a single county verdict establishes very little.

3. The 2026 legislative fight, and where it landed

Both chambers tried to move stillbirth claims into the Wrongful Death Act this session. CS/HB 289 would have amended the definition of “survivors” in section 768.18 to include parents of an unborn child, defined as a member of the species Homo sapiens at any stage of development carried in the womb. It passed the House 76 to 34 on a largely partisan vote in January. [4] Its Senate companion, SB 164, cleared the Judiciary Committee 5 to 4 and Appropriations on Criminal and Civil Justice 5 to 3, then stalled.

Both bills died in Senate Rules on March 13, 2026, the final day of session. [5] The same day, HB 6003, which would have repealed the medical negligence restriction in section 768.21(8) that critics call the “free kill” law, also died in the Senate after passing the House 88 to 17. [6]

The positions deserve to be stated fairly, because both are serious. Proponents argue the current line is arbitrary: a negligent act that kills a child moments after delivery produces a full statutory claim, while the identical act moments before does not. Opponents, including medical, insurance, and reproductive rights organizations, raised fetal personhood concerns and warned of expanded exposure for any clinician treating a pregnant patient. The House bill responded in part with carve-outs barring suit against the mother and against providers furnishing lawful care in compliance with the applicable standard of care. Nothing was enacted. Comparable bills have now failed in consecutive sessions, and refiling is likely.

4. Apportionment: naming the empty chair is not the same as filling it

Under Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and section 768.81(3), a defendant seeking to place a nonparty on the verdict form must plead that nonparty’s fault as an affirmative defense, identifying the nonparty if known or describing it as specifically as practicable, and must then prove that fault at trial by a preponderance of the evidence. [7] The defendant carries the same duty, breach, and causation burden a plaintiff would carry.

In prenatal misread cases the nonparty is frequently the midwife or the referring provider, and section 467.015(1), Florida Statutes, becomes the fulcrum. A licensed midwife may accept and provide care only for mothers expected to have a normal pregnancy, labor, and delivery; a patient who is not low risk requires collaborative care within a physician’s written protocol. [8] That statute cuts both ways. Plaintiffs argue the midwife’s continued involvement was itself the product of an erroneous report she had no reason to question. Defendants argue the midwife retained independent duties of ongoing risk assessment throughout the antepartum period. Juries can and do go either direction on that record.

5. The standard of care dispute is genuinely two-sided

The AIUM-ACR-ACOG-SMFM-SRU practice parameter for standard obstetric ultrasound provides that when technical limitations impair anatomic evaluation, the report should document the nature of that limitation, and that a follow-up examination may be helpful. [9] Where a technologist worksheet records non-visualization of a structure and the final report reads as unremarkable, that gap is the case. Both sides should obtain the sonographer worksheet, the raw images, and the cine loops early, and should not assume the narrative report captures what the technologist actually saw.

The defense has real material here too, and plaintiff-side lawyers underestimate it at their peril. A systematic review of transabdominal ultrasound found prenatal detection rates in low-risk populations ranging from 33 to 88 percent for cleft lip with or without cleft palate, and from 0 to 22 percent for isolated cleft palate. [10] Competent experts genuinely disagree about whether a given miss reflects a negligent interpretation or an inherent limitation of a screening study. The distinction is often blurred in closing argument, and it is worth keeping sharp in expert disclosures.

6. The case that prompted this discussion

A caution on sourcing before the facts. The account originates in a press release distributed by the prevailing plaintiffs’ firm on July 9, 2026. [11] Trade outlets including Radiology Business and Applied Radiology reported the result, but both attribute the underlying facts to that same statement. [12] There is no published opinion and no public defense account. Read what follows as one side’s characterization of a contested record.

As alleged, a sonographer performing a 20-week anatomy scan documented that she could not adequately visualize the fetus’s face, nose, and lips. The interpreting radiologist reported no facial or oral defects. A severe cleft deformity was identified only after delivery. The mother developed preeclampsia at roughly 38 weeks and delivered a stillborn daughter. The plaintiffs’ theory was that detection at 20 weeks would have moved her from midwifery care to an obstetrician and into a hospital delivery. The defense placed the midwife on the verdict form as a nonparty. According to the firm, no settlement was offered before or during the week-long trial in Lee County, case no. 23-CA-009865. [13]

7. Caveats worth stating out loud

A reported verdict is not a final judgment. Post-trial motions, remittitur, setoffs, collateral source reductions, and appeal all remain live, and firm announcements almost never report what happens next. A single circuit court verdict carries no precedential weight and should not anchor anyone’s settlement posture on its own. Chapter 766 presuit notice and investigation requirements, and the two-year limitations period, continue to govern these claims regardless of how the legislative debate ultimately resolves.

This post is general commentary and not legal advice.

Sources

1. Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997), Florida Supreme Court opinion. https://law.justia.com/cases/florida/supreme-court/1997/88544-0.html
2. Florida Senate Bill Analysis and Fiscal Impact Statement, SB 164 (2026), Appropriations Committee on Criminal and Civil Justice. https://www.flsenate.gov/Session/Bill/2026/164/Analyses/2026s00164.acj.PDF
3. Kammer v. Hurley, Fla. 4th DCA, case summary and damages breakdown. https://www.hortyspringer.com/documents/kammer-v-hurley/
4. “House passes bill expanding Wrongful Death Act to cover fetuses,” Florida Politics, January 2026. https://floridapolitics.com/archives/774193-house-passes-bill-expanding-wrongful-death-act-to-cover-fetuses/
5. SB 164 (2026) bill history, showing “Died in Rules” on 3/13/2026, The Florida Senate. https://www.flsenate.gov/Session/Bill/2026/00164
6. “Florida’s 2026 legislative session ends: What passed, what failed and what’s next?” WUSF, March 13, 2026. https://www.wusf.org/politics-issues/2026-03-13/florida-2026-legislative-session-ends-what-passed-what-failed-whats-next
7. “Refining Comparative Fault in Florida: A Causation Theory for Apportioning Fault,” The Florida Bar Journal. https://www.floridabar.org/the-florida-bar-journal/refining-comparative-fault-in-florida-a-causation-theory-for-apportioning-fault/
8. Section 467.015, Florida Statutes, Responsibilities of the midwife. https://www.flsenate.gov/laws/statutes/2019/467.015
9. AIUM Practice Parameter for the Performance of Standard Diagnostic Obstetric Ultrasound Examinations, Journal of Ultrasound in Medicine. https://onlinelibrary.wiley.com/doi/10.1002/jum.16406
10. Maarse et al., “Diagnostic accuracy of transabdominal ultrasound in detecting prenatal cleft lip and palate: a systematic review,” Ultrasound in Obstetrics & Gynecology. https://obgyn.onlinelibrary.wiley.com/doi/full/10.1002/uog.7472
11. “Fogg Law Group Secures $2 Million Medical Malpractice Jury Verdict in Lee County Stillbirth Case,” PR Newswire, July 9, 2026. https://www.prnewswire.com/news-releases/fogg-law-group-secures-2-million-medical-malpractice-jury-verdict-in-lee-county-stillbirth-case-302822030.html
12. “Parents awarded $2M after ultrasound misinterpretation leads to child’s stillbirth,” Radiology Business, July 19, 2026. https://radiologybusiness.com/topics/healthcare-management/legal-news/parents-awarded-2m-after-ultrasound-misinterpretation-leads-childs-stillbirth
13. Prevailing firm’s own case summary, including the nonparty midwife defense. https://fogglawgroup.com/2000000-00-medical-malpractice-verdict-in-lee-county-florida/