Legal Question in Medical Malpractice in New York

stillbirth

I was admited to the hospital with ruptured membranes at the 37 week point of my pregnancy (full term). Contractions had not started and the hospital diagnosed me with sever olygohydromniosis. The second day the nurse took me of the fetal heart monitor for 2 1/2 hours, even though continuous heart monitoring was ordered and I had complained about not feeling well. When the monitor was finally replaced, my baby was found to have died due to a cord restriction, which could have been prevented. We were told that NY state law doesn't recognize an unborn child doesn't exist until there is a live birth, so a wrongful death suit can not be filed. Is that correct and if so, what legal recourse do we have?


Asked on 8/04/08, 10:00 pm

3 Answers from Attorneys

jeffrey lazroe Jeffrey A. Lazroe attorney at law

Re: stillbirth

Your information is correct. New York is one of only a few states that say there is no negligence for a stillborn.

I don't agree with it, but that is the law.

There have been cases on behalf of the mother, if she cannot have other children, and there have even been cases where the mother has been traumatized as being "in the zone" of danger". Most often these cases are dismissed.

I began my practice as an associate professor of Legal Medicine at the State University of New York School of Medicine in Buffalo, and that has been the law for more than 35 years.

If you would like to discuss this further, please feel free to contact me.

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Answered on 8/04/08, 10:25 pm

Re: stillbirth

I am sorry for your loss. I disagree with the advise you have been given. There was a change in the law a few years ago. NY now recognizes a claim for the mother's emotional distress for a stillbirth caused by medical malpractice even without physical injury,

Do you have the medical records? Have you received any mental health care? Feel free to contact me. The above is for informational purppses only and not meant as legal advise.

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Answered on 8/05/08, 6:52 am

Re: stillbirth

It has long been held under New York Law that neither distributees nor the mother or father of a stillborn fetus can recover for lost services or loss of offspring. There is, however, a potential claim for injury to the mother, mental and physical, if caused by the wrongdoing of a third party. Thank you. M. E. Zuller

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Answered on 8/05/08, 8:42 am


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