New York’s Top Court Declines Invitation to Expand Allowable Recovery for Mental Suffering

Under the Empire State’s top court’s decision, New York law will continue to prevent recoveries for emotional suffering in medical malpractice claims involving in-utero injuries to a child born alive. The four-judge majority cited what it said was the need to adhere to stare decisis. The other three judges were open to eliminating the limitation. New York State Trial Lawyers Association president Andrew Finkelstein lauded the three Court of Appeals judges who dissented. “Judges Rivera, Troutman and Chief Judge Wilson got it right,” he said. “New York will honor grief over a pet, but not over your newborn — if the child lived even briefly before dying from malpractice, the law casts aside a mother’s grief. NYSTLA joins the majority’s call for the governor to join the legislature in signing the Grieving Families Act to finally correct this cruel and senseless inequity.