How Do New York Courts Handle The Wrongful Death Of A Fetus?

How Do New York Courts Handle The Wrongful Death Of A Fetus?

If a fetus dies during delivery, the state of New York does not allow a lawsuit to be brought on behalf of a fetus. However, courts do allow recoveries of other types of damages in malpractice that results in the death of a fetus.

In the cases Broadnax v. Gonzalez, et al. and Fahey v. Canino, et al. the New York Court of Appeals set various precedents. In its review of these cases, the court also reviewed an earlier case called Tebbutt where it had previously ruled that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage. The court ruled that for the mother to pursue malpractice, she must experience an abnormal childbirth incident and physical injury distinct from the injury the fetus suffered. However, upon subsequent review, the court reversed its decision and found that a mother may sue the physician for emotional injury due to malpractice, even when the fetus dies prior to delivery and when the mother does not suffer physical injury. The court deemed that the mother and fetus were linked. Yet, despite this change of ruling, the court did not change the earlier precedent that established a fetus does not have legal rights and parents cannot sue for wrongful death of a fetus dying before birth as a result of medical malpractice.

If you have any questions about the complicated laws surrounding wrongful death cases, consulting a knowledgeable Manhattan wrongful death lawyer can set your case on the path to favorable resolution. 

At Rich & Rich, P.C. our attorneys provide compassionate and effective legal assistance to help you receive the compensation you deserve under New York laws. We offer a free consultation to discuss your concerns. Call 646.736.3999 to learn how we can help.

Contact the Firm


New York City Office

1430 Broadway,
Suite 1802,
New York, New York 10018

Roslyn Heights Office

277 Willis Avenue,
1st Floor,
Roslyn Heights, New York 11577