This is an interesting article that appeared in today's NY Post. Here's the article link.


The article describes a woman who was 8 months pregnant who had bleeding and cramps and went to Mt. Sinai Hospital of Brooklyn. This particular community hospital did not have an Obstetrician on staff and had no maternity facilities. By the time she was actually seen, she was informed she'd need be transferred to their main hospital in Manhattan on the upper East side almost an hour away.

The hospital staff told this pregnant patient that the only hospital she could be transferred to was one that was in-network and approved. That meant Mount Sinai Hospital in Manhattan. Mom was concerned about the length of time it would take to make the transfer. Importantly, there are other hospitals within Brooklyn that are much closer and have Obstetrical and maternity wards.

The article claims that hospital staff refused to allow her to transfer to a Brooklyn hospital.

Needless to say, by the time a transport ambulance arrived and actually transported the patient to uptown Manhattan, four hours later, the baby had died. There was no heartbeat. Mom was told that her placenta had erupted.

Here's the twist in this story that is not reported in the article.

In New York, a parent cannot sue on behalf of a baby that has not been born alive. Let me explain. In a death case, the surviving family member brings a lawsuit on behalf of the person who died. The law allows a surviving family member to literally step into their shoes so they can bring a lawsuit against the doctor or hospital who caused the untimely death. In addition, the surviving family member also has a right to bring a claim on their own behalf for the loss of this person.

Let's now apply that to this scenario.

If the baby had been born alive, even for seconds, minutes or days and then died, mom would be able to sue the doctors and hospital staff on behalf of their baby. In addition, she would also be able to bring a separate claim for her own physical and psychological injuries as a result of her baby's untimely death.

But that's not what happened here.

Instead, this eight month old baby died before being born. Now don't get all high and mighty and righteous on me here. This article is not a discussion on when does life begin. Instead, the law in New York is clear. It says that life begins only upon a live birth. This is an important legal distinction.

What that means for mom is that she CANNOT bring a lawsuit on behalf of her unborn child who died in utero. Cannot. If she did, her case would be dismissed when (not if) the hospital asked the judge to immediately thow it out. So if mom can't sue for the death of her unborn child, what can she sue for?

Glad you asked.

Mom can sue for her OWN injuries and damages.

She can sue for psychological harm she suffered. She can sue for negligent infliction of emotional distress. She can sue for any physical injuries she suffered as a result of the hospital staff's carelessness as long as those physical injuries are different and distinct than what she would have experienced with a normal delivery.

As an example, let's say she required a c-section to deliver her dead baby. During the course of the c-section her ureter was cut. Or maybe her bowel was perforated and now she needed emergency bowel surgery to fix the problem. Those types of injuries would be included in her own claim for physical and emotional damages SHE suffered as a result of the carelessness by the hospital staff.

Interestingly, the NY Post makes no observation of any of these things. Instead, they focus on the claim mom is making and the carelessness of the hospital. I think a reader should understand why the hospital may be legally responsible for the baby's death before being born, but should also realize that mom cannot sue on behalf of her dead baby. Instead, she can only sue to obtain money as a form of compensation for her OWN physical and emotional injuries.

To learn 5 reasons not to bring a wrongful death lawsuit in NY, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer