Professional Negligence Law Reporter

A New York appellate court held that a mother whose baby died shortly after birth in a hospital delivery room may not recover emotional distress damages arising out of a stillbirth.

After being diagnosed as having preeclampsia at 26 weeks gestation, Kaymarie Waring delivered her daughter in a severely depressed condition. The child, whose Apgar score was one at one, five, and 10 minutes, died less than 20 minutes after her delivery. Waring filed suit against the hospital and two treating physicians, alleging medical negligence. The plaintiff sought to recover for emotional distress arising out of delivery of a stillborn infant. The defense moved successfully for summary judgment. The trial court found that the plaintiff had failed to raise a triable issue of fact regarding whether her daughter was stillborn, and, therefore, emotional distress damages were precluded.

Affirming, the appellate court cited case law holding that a mother cannot recover damages for emotional distress where the alleged malpractice involves in-utero injury to a fetus who is subsequently born alive. Here, the court said, the plaintiff’s expert, a pediatric neurologist, conceded that the child was born with a heartbeat, notwithstanding his assertion that the child was clinically and legally dead at the time of delivery. Moreover, the plaintiff testified at deposition that she had been told at the hospital that her child was a live birth, the court found.

Acknowledging the plaintiff’s argument that there would be no redress for her baby’s pain and suffering based on the fact that she had never been conscious, the court found that such an outcome is an inherent aspect of wrongful death actions, not medical malpractice claims.

Citation: Waring v. Matalon, 185 A.D.3d 623 (N.Y. App. Div. 2020).