Unborn and Unprotected – Why Birth Injury Laws in Texas Must Change

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Horrifying Georgia Birth Injury Case Is Lesson On Anemic Texas Laws

The country has been horrified by the tragic news emerging from Georgia, where a couple alleges a doctor used excessive force during delivery resulting in the decapitation of their child.  While the Georgia case is undeniably heart-wrenching and raises many legal and ethical issues, most Texas residents are unaware that not only do such tragedies occur in Texas, but that Texas law aggressively shields such negligence and precludes any meaningful recovery to compensate the families and deter bad healthcare providers.  

Born Alive Requirement in Texas

Although Texas politicians love to strut about proclaiming their “pro-life” credentials, they have passed laws that specifically exclude grieving parents from holding negligent healthcare providers at fault when they cause the death of an unborn child.   The Texas legislature amended the wrongful death act in 2003 to include unborn children, but went out of their way to specifically exclude medical malpractice cases.  Texas requires that the baby “take at least one breath” outside the womb.  This was a gift to the healthcare lobby.

Under Texas law, a baby that is decapitated in the womb by a negligent physician is not considered wrongful death.  The parents have no recourse for justice and the negligent parties are not held accountable.  This should bother everyone.

Texas law must be changed to include wrongful death for the unborn in medical malpractice cases.  A mother that carries her child for nine months, has picked out a name, and decorated a nursery should not be told her child does not count because the person that took the child’s life was a doctor instead of a driver that ran a stop sign.  The loss is just as real.  Texas law must stop denying justice to families who lose their unborn children due to the negligence or misconduct of medical professionals.

Damages Caps in Medical Malpractice Cases

But even if a case were to be permitted under Texas law, another obstacle presents itself: the damages cap. In 2003, Texas passed so-called tort reform legislation that placed a cap on non-economic damages in medical malpractice cases. This cap limits recovery to $250,000, irrespective of the severity of the malpractice or the level of suffering experienced by the patient and their family.

What’s more troubling is that this cap has remained stagnant since 2003, with no adjustments for inflation or the consumer price index. To put this into perspective, what $250,000 could cover in 2003 is far less than what it can cover today. Yet, the cap remains unchanged, effectively diminishing the potential compensation for families year after year.

Texas must do better.  Texas must tell families that their losses matter , some sort of meaningful compensation must be arranged, and it must not decrease every year.  Any less is the epitome of adding insult to injury.  

The Implications

These legal limitations highlight a concerning narrative: that Texas law is increasingly hostile to patients. It suggests that the wants of medical practitioners and institutions are being prioritized over the rights of patients and their families. By limiting the ability to sue and capping potential damages, Texas laws deter victims from pursuing justice and hinder their ability to recover fair compensation for their suffering.  It also creates no incentive for the healthcare system to do better which puts us all at risk when we go to a doctor or hospital.  


While the tragic case from Georgia serves as a grim reminder of the potential consequences of medical malpractice, it also provides an opportunity for Texas residents to reflect on our state’s laws. It’s high time we reevaluate these laws, ensuring they prioritize the rights and welfare of patients over the interests of powerful medical entities.

We believe in a legal system that offers justice to all, regardless of the tragedy’s timing or the inflation rate. It’s time for Texas to step up and make the necessary changes to protect its residents and ensure a fair and just legal system for all.



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