In a recent decision, the New York Court of Appeals reaffirmed that under current New York law, mothers cannot recover damages solely for emotional suffering in cases where prenatal injuries occur and a child is born alive but later dies or is severely injured.
What happened
An expectant mother alleged that medical professionals failed to properly obtain her informed consent during pregnancy, leading to the brain damage of her baby who and died shortly after birth. The Court was asked to overturn a decades‐old precedent that bars recovery for purely emotional harm in prenatal tort claims.
However, by a 4-3 majority the court declined to overturn that precedent and instead indicated that changes would need to come through the legislature.
Why this matters
For clients and families throughout New York, this decision signals some important practical realities:
- It confirms that under current law, emotional suffering alone (without physical injury to the claimant) is not sufficient to support a damages claim in a prenatal scenario.
- It places greater importance on whether a claimant can demonstrate a recognized physical injury or wrongful death claim under existing statutes.
- It suggests that individuals seeking to hold medical providers responsible for prenatal harms should move quickly and consult counsel about all possible legal theories, including physical‐injury components, informed consent violations, or other statutory rights.
What it doesn’t do
- It does not prevent all claims for prenatal harm; rather, it limits the ability to recover only for emotional distress when the child was born alive and later died or was injured.
- It does not mean that legislative changes are impossible. In fact, the court explicitly deferred to the legislature, noting that any expansion of recovery for grief or emotional loss rests with lawmakers.
What your legal-team should review
When a family comes to us after prenatal or birthing injuries, here are some of the areas we routinely examine:
- Was there an injury to the child that constitutes a recognized physical harm or wrongful death cause of action?
- Was the mother herself physically injured (as opposed to experiencing only emotional harm)?
- Did the medical provider fail to obtain informed consent or otherwise breach a duty in a way that caused harm?
- Are there existing New York statutory or case law pathways (beyond emotional-distress only claims) to pursue full compensation?
- What is the statute of limitations or relevant deadlines for the particular claim (both for medical‐malpractice and birth-injury scenarios)?
- What evidence is available—medical records, expert testimony, causation analysis—that can link provider misconduct to the child’s injury or death and to the mother’s own losses (financial, physical, emotional)?
How we help families in this region
At Finkelstein & Partners, we understand the profound pain and confusion that can follow prenatal injuries or birthing tragedies. Even when the law currently limits certain types of recovery, that doesn’t mean families are without options. We:
- Listen carefully to gather the full story and all losses (medical costs, lost future earnings, care needs, emotional and relational harm).
- Identify every possible legal pathway—and explain which are viable under New York’s current law and which might be subject to legislative change in future.
- Work with medical experts to assess exactly what happened, whether the provider met the standard of care, and what the damage landscape looks like.
- Provide clear, compassionate guidance about potential outcomes, timelines, and costs, so families can make informed decisions.
Looking ahead
There is proposed legislation in New York (for example the Grieving Families Act) which would expand the ability of families to recover emotional and grief‐based losses. If passed, such statutes could change the legal landscape in the future. Until then, however, the case reminds us that under current precedent, emotional losses alone in prenatal injury claims face significant legal hurdles.
If you or a loved one experienced a birth-related injury or untimely death of a newborn and you believe provider conduct played a role, you should speak with a qualified New York medical malpractice attorney as soon as possible. The law around prenatal harm and emotional suffering is complex and heavily shaped by long-standing precedent. Having an experienced team evaluating your case early helps preserve your rights and ensures no legal opportunity is missed.
If you’d like our help, please reach out. We’re committed to helping families navigate this difficult terrain with clarity, compassion and legal insight.