There can be nothing worse for a parent than losing your child. Some of the most tragic and heart-breaking cases that we have worked on involve parents who went to the hospital to welcome their healthy, happy baby at the end of a routine pregnancy, parents who had no reason to expect anything else.

However, these parents then leave the hospital a few days later without their child, who due to the negligence and failures of hospital staff, passed away shortly after birth.

These are parents who expected to bring their child home to their new nursery, to show their child to their friends and family, only instead to go home to an empty room and, in the midst of their sadness, have to tell everyone that their baby died.

Recently, we have had a number of these birth injury cases, where an otherwise healthy baby was born in terrible condition (or suffered an injury shortly after birth) due to the negligence of the hospital, only for the baby to pass away a few hours to days before birth. These are often considered very difficult cases, as even though it involves one of the most tragic deaths, the death of an infant, the damages were traditionally very limited due to the narrow categories of death for children.

Damages in New York Birth Injury Law

Currently under New York law, a baby who dies shortly after birth can only recover 2 basic categories of damages.

Wrongful Death

The first, is for wrongful death, but this is only for future pecuniary loss to the baby’s distributees (almost always only the parents), which damages can be very speculative and difficult to prove, as the Plaintiffs must show that such infant, if born healthy, would have gone on to support their parents financially, which is hard to show. Courts have allowed recovery for this category of damages, but have severely limited the value to at most around $75,000-$150,000, and often less. At this current time, in New York, parents cannot recover for the grief and emotional distress they experience from losing their child.

Conscious Pain and Suffering

The second category of damages is for the conscious pain and suffering the infant experienced before death. The problem is that the time frame for this category is usually short, only a few hours or days. Moreover, due to their terrible condition and problems, such infants are often in comas, sedated, on pain medication, and/or not conscious, which makes proving substantial damages for conscious pain and suffering very difficult to impossible, as due to the limited time periods, judges and/or the appellate division would usually reduce any award on appeal, as is this usually function.

Barriers to Birth Injury Compensation in New York: Infants who Pass Away After Birth

Recovering damages for conscious pain and suffering for an infant injured at birth can be especially problematic where, due to the negligent failure to deliver the baby by C-section earlier, the baby is born in such dire straits that the baby is born without the ability to breathe or cry, and is only born with a weak heartbeat, meaning that the baby is not conscious and it might be impossible to prove that the baby was ever conscious or ever experienced conscious pain and suffering.

In these cases, Plaintiffs might not be able to recover any conscious pain and suffering for the child and could only get the limited wrongful death for future pecuniary loss, meaning the tragic loss of a baby results in almost no damages or potential recovery for the family who lost their whole world.

These kinds of cases show the potential arbitrariness that can exist in New York law, where ironically, if the defendants negligently waited even longer to do a C-section such that the baby died in utero or so the baby was stillborn, the plaintiff Mother could actually recover for her emotional injuries that she experienced due to the loss of her child. This was done pursuant to a case, Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004), and its progeny, where the Court of Appeals allowed a mother to recover for her emotional injuries and grief from losing her child (previously some courts had held that a mother could not even recover at all for a stillborn birth caused by malpractice). Broadnax was an important and helpful extension of the law to allow Mothers to recover; however, courts have refused to take this expand this any further (such as to Fathers, or children who die almost immediately after birth, even if they were born without the ability to survive due to the negligent delay in their delivery).

Lawyers in New York generally agree that Broadnax claims for the Mothers are usually more valuable claims and lead to bigger recoveries than claims brought for children who died shortly after birth or shortly after their injuries.

Courts have explicitly declined to extend Broadnax to cover children who are technically born alive, even if they had no chance of living due their extremely precarious status and condition at birth. The Courts have ruled that a heartbeat, even if only for a few minutes, and even if the baby was effectively born dead without ever experiencing consciousness, was enough to block the mother from recovering for her grief under Broadnax, while simultaneously allowing almost no recovery for the infant pain and suffering. The courts have reasoned that the Wrongful Death claim, although limited, still exists, so thus there is no reason to extend Broadnax to allow mothers to recover for their emotional injuries.

In fact, the Courts have held that one strong factor in favor of ruling that the baby was born alive, and thus ruling that the mother would be prevented from recovering under Broadnax, was whether the hospital issued a Birth Certificate for the child or not, thus leaving the hospital in a position to partially cover up from the negligence and limit their exposure by claiming the child was born alive and thus preventing the more valuable Broadnax claim of the Mother.

New York Grieving Families Act and Birth Injury Compensation

The New York State Trial Lawyers and the New York State Academy of Trial Lawyers, of which our attorneys are members of, have been working with the New York State Legislature to pass the Grieving Families Act, which would allow families members to recover for the grief and emotional injury suffered by the loss of their loved ones, including children.

This would prevent the above described illogical situation where families of children who died as little as 1 minute after birth would get substantially less than families of children who died 1 minute before birth. Unfortunately, despite the Grieving Families Act being passed with substantial majorities in both the New York State Assembly and New York State Senate for three straight years, it was again vetoed a third time by Governor Hochul only a few weeks ago.

Experienced New York Birth Injury Lawyers: Our Commitment to Pursuing Justice

However, even though the Grieving Families Act has not been signed into law, the shadow of such law has helped the Jacob D. Fuchsberg Law Firm to get at least some level of justice for the families who lost their child only a few hours/days after birth. In fact, just recently, the Jacob D. Fuchsberg Law Firm, through attorneys Christopher Nyberg and Bradley Zimmerman, settled 3 cases where infants died shortly after birth for amounts from $560,000 to $800,000, despite the fact that the infants only lived for minutes, hours, or a few days after their birth/injury.

1. One of these cases involved a baby who was born premature with breathing issues, but who died as a result of an iatrogenic pneumothorax, which was caused when the baby was being intubated for the routine administration of medication.
2. The second case involved a child who died 9 minutes after birth due to the negligent failure to do a C-section for several hours.
3. The third cases involved a mother who had a prior history of classical C-section (which put her at high risk for a uterine rupture if labor was allowed to continue) and despite this high risk, despite presenting to the hospital in labor, despite the baby’s heart rate showing serious problems, and the despite the need for an emergent C-section, there were several delays, including failing to timely get the OR ready, failing to timely call the anesthesiologist to come into the hospital, and failing to timely order the C-section, which delays ultimately led to the death of their child only a few days after birth.

Our Firm was able to combine a strong investigation, expert reviews, thorough depositions, and arguments as to damages, which included the Grieving Families Act (and the desire of the hospitals to avoid a verdict that would demonstrate the injustice to these families of losing their precious child shortly after that birth and then being denied a proper recovery by either a trial court or appellate court), to achieve these substantial results in these cases, even though such cases usually generate smaller recoveries.

In fact, many times these cases would not even be taken by most law firms due to the small potential recoveries. We had decided to pursue these three cases despite the potential limited damages, as we felt strongly that these were avoidable tragedies, which should have been prevented if the hospitals, nurses, and doctors had just done their job and not acted negligently.

We felt the combination of the tragic nature and obvious negligence were enough for us to take these cases in order to help these families get justice, and with hard work and determination we were able to do just that.

Even as we write this article, we currently have several other cases that fit this same category, and we will put the same hard work and dedication into these cases to help these families, who experienced the most terrible and tragic result a parent can experience, to at least get some level of justice.

If you or your family have lost a newborn due to medical malpractice, contact New York Birth Injury Lawyers at the Jacob Fuchsberg Law Firm for a free consultation.

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