What are your legal rights after a stillbirth caused by medical negligence in New York?
Under Broadnax v. Gonzalez, a New York mother can sue for her own emotional distress when medical malpractice causes a stillbirth, but the baby has no wrongful death claim. Most claims must be filed within two and a half years, or sooner if you sue a public hospital.
Losing a baby before birth is a grief few people are prepared for, and when there are signs the loss could have been prevented, many parents want to know what New York law allows. In a stillbirth medical malpractice case, New York lets the mother bring her own claim for the emotional harm she suffered, even if she had no separate physical injury.
Not every stillbirth is caused by a mistake, and many happen despite excellent care or are never fully explained. But when a doctor, midwife, nurse, or hospital misses warning signs or fails to act, the law gives families a path to accountability. If you lost a baby and have questions about the care you received, our New York medical malpractice attorneys can review what happened for free and explain your options.
Schedule a Free Case Evaluation
Key Takeaways for Stillbirth Medical Malpractice in New York
Here is what New York families most need to know about a stillbirth malpractice claim:
- New York lets a mother recover for her own emotional distress when medical malpractice causes a stillbirth, without proving a separate physical injury.
- A stillborn baby has no wrongful death claim under New York law, and the father has no emotional distress claim of his own.
- Most claims must be filed within two years and six months, and claims involving a public hospital require a notice of claim within 90 days.
- An autopsy, a placental exam, and complete prenatal records often provide the evidence that determines whether negligence can be proven.
Each of these rules has limits and exceptions, so the details that follow matter for any family weighing a claim.
How Common Is Stillbirth, and What Causes It?
What counts as a stillbirth
The Centers for Disease Control and Prevention defines stillbirth as the loss of a pregnancy at or after 20 weeks. Its national data show that stillbirth affects about 1 in 175 births, or roughly 21,000 babies a year in the United States. Each number represents a family facing a loss that few people talk about openly.
What federal research shows about stillbirth causes
Federal research shows that pregnancy and labor complications and problems with the placenta are the most common causes of stillbirth. A large federally funded study by the Stillbirth Collaborative Research Network found those two groups led, followed by genetic conditions and birth defects, infections, umbilical cord problems, and high blood pressure in the mother.
With a thorough evaluation, researchers identified a probable or possible cause in 76 percent of cases. That leaves roughly one in four stillbirths without a clear explanation.
Several of these causes can be detected or managed during pregnancy. That is where questions of medical negligence arise.
When Is a Stillbirth Considered Medical Malpractice?
Medical malpractice means a provider departed from accepted medical practice and that departure caused harm. In stillbirth cases, the question is usually whether the care team noticed and responded to signs that the baby was in trouble. Cases can involve:
- Dismissing a mother's report that the baby is moving less, without checking on the baby's well-being
- Missing or mismanaging preeclampsia and other high blood pressure conditions
- Failing to control diabetes that began before or during pregnancy
- Missing signs that the baby was not growing properly or that the placenta was failing
- Overlooking bleeding or pain that pointed to the placenta separating from the uterus
- Failing to diagnose or treat an infection
- Misreading or ignoring a troubling fetal heart rate pattern during monitoring or labor
- Delaying delivery, including an induction or cesarean section, after the risks of waiting became clear
Many of these problems overlap with other obstetric injury claims, including those involving preeclampsia injuries or a failure to induce labor in time.
Your Rights Under New York Law
The mother's own stillbirth claim
A New York mother can recover for her own emotional distress when medical malpractice causes a stillbirth, even without a separate physical injury. The Court of Appeals recognized that right in 2004 in Broadnax v. Gonzalez, holding that malpractice resulting in a miscarriage or stillbirth violates a duty of care owed to the expectant mother, who is the patient. Before that decision, she had to show a separate physical injury to recover.
No wrongful death claim for a stillborn baby
New York's wrongful death law does not cover a baby who dies before being born alive. The Court of Appeals decided this in 1969 in Endresz v. Friedberg, and it described the rule again in its October 2025 decision in SanMiguel v. Grimaldi. The court has explained that the mother's own claim, recognized in Broadnax, exists precisely so that this kind of wrong does not go without a remedy.
The father or partner
Because the doctor's duty runs to the mother as the patient, the Court of Appeals held in Broadnax that the father does not have his own emotional distress claim. A spouse may still have a related claim for the loss of the mother's companionship and services, but that claim depends on hers.
If the baby was born alive
A baby who is born alive has a malpractice claim of his or her own, and if the child later dies, the estate may bring a wrongful death claim.
A parent, however, generally cannot recover for emotional distress caused only by a live-born child's injuries. The Court of Appeals set that rule in Sheppard-Mobley v. King in 2005 and reaffirmed it in SanMiguel in 2025. If your baby was born alive, a separate birth injury claim may apply.
The mother's physical injuries
A stillbirth caused by negligence can also harm the mother physically, for example through untreated preeclampsia, heavy bleeding, infection, or emergency surgery. She can recover for those injuries, including medical costs and lost income, alongside her emotional distress claim.
Wrongful death reform and the Grieving Families Act
New York's wrongful death law limits recovery to financial losses and does not compensate families for grief. The legislature has passed the Grieving Families Act four times to change that, and Governor Hochul vetoed each version, most recently in December 2025. As of October 2026, the law remains unchanged.
How a Stillbirth Malpractice Case Is Proven
A stillbirth claim rests on the same four elements as any malpractice claim in New York: duty, a departure from accepted practice, causation, and damages. In a stillbirth case, the duty to the mother is clear. The hard questions are what a careful provider would have done, and whether doing it would more likely than not have saved the baby.
That requires testimony from a qualified physician, usually an obstetrician or a maternal-fetal medicine doctor. When a malpractice complaint is filed, New York's certificate of merit rule generally requires the attorney to certify that they reviewed the facts, consulted a physician, and concluded the case has a reasonable basis.
The defense often argues that the cause of death is unknown or that nothing could have prevented it. That is why the medical evidence gathered after a loss matters so much:
- Autopsy and placental examination. The research network found that a full evaluation, including autopsy, examination of the placenta, and genetic testing, identified a cause far more often than a review of the records alone.
- Prenatal records. Visit notes, blood pressure readings, lab results, ultrasound reports, and fetal monitoring results show what the care team knew and when.
- Triage and phone records. Records of calls, patient portal messages, and visits to labor and delivery triage can show whether the care team took concerns about decreased movement or other symptoms seriously.
- Fetal heart monitoring strips. In losses that happen during labor, the monitoring record is often the most important evidence.
Medical records are also a place to look for what is missing. When Washor Kool Sosa Maiorana & Schwartz reviews a New York stillbirth case, gaps in monitoring notes or unanswered patient messages can say as much as the entries.
The defense may also point to the mother's own choices, such as a missed prenatal appointment. Under New York's comparative fault rule, that argument cannot bar her claim, but any share of fault a jury assigns to her reduces the award by that percentage.
What Compensation May Be Available
A mother's claim after a negligent stillbirth may include compensation for:
- Emotional distress, grief, and mental anguish
- Her own physical injuries and the pain that came with them
- Medical expenses and lost income tied to her injuries
New York sets no dollar limit on these damages in a malpractice case, though a judge can reduce a jury award that goes well beyond what is reasonable. Every case is different, and the value depends heavily on the facts and the strength of the medical proof.
How Long Do You Have to File a Stillbirth Malpractice Claim?
A mother's claim after a negligent stillbirth follows the same deadlines as other New York malpractice cases. The main time limit comes from section 214-a of New York's Civil Practice Law and Rules. Which deadline applies depends on whether the care came from a private provider or a public hospital.
| Where the care happened | Notice required first | Deadline to file the lawsuit |
|---|---|---|
| Private hospital, doctor's office, or midwife practice | None | Two years and six months from the malpractice, or from the end of continuous treatment for the same condition |
| Public hospital, such as an NYC Health + Hospitals facility | Notice of claim served within 90 days | One year and 90 days |
Public hospital rules are strict, and missing the 90-day notice can put a claim at risk before it starts. Because these deadlines have exceptions that turn on the facts, it's worth learning more about how the malpractice deadline works and having your dates checked early.
Steps to Consider After a Stillbirth
Grief comes first, and nothing here needs to happen overnight. Still, a few steps are time-sensitive or easier to take early, and many families find these helpful:
- Asking the hospital about an autopsy, placental examination, and genetic testing, since these decisions usually have to be made soon after the loss
- Requesting the complete chart from every provider involved, including the prenatal office and the labor and delivery unit, since New York's patient access law gives patients the right to copies
- Saving texts, emails, patient portal messages, and call logs with providers
- Writing down a timeline while it is fresh, including when changes were noticed and what the care team said
- Keeping copies of the autopsy and pathology reports and asking a trusted doctor to explain the findings in plain terms
None of these steps commits you to a lawsuit. They simply keep the evidence available if you later decide to have the care reviewed.
Stillbirth Medical Malpractice Questions Answered by Our New York Attorneys
These are some of the questions New York parents ask most often after a stillbirth.
Can you sue a hospital or doctor for a stillbirth in New York?
Yes, if medical negligence caused the stillbirth. A New York malpractice claim can name each provider whose care fell below accepted practice, including an obstetrician, midwife, nurses, or the hospital itself. A hospital is generally answerable for its own employees, but usually not for a private obstetrician it does not employ.
How much does a stillbirth malpractice lawyer cost in New York?
Medical malpractice attorneys in New York usually work on a contingency fee, which means they are paid only from money recovered. For malpractice cases, New York's Judiciary Law caps that fee on a sliding scale, from 30 percent of the first $250,000 down to 10 percent of any amount over $1.25 million, calculated after case expenses are deducted. A court can approve a higher fee only in extraordinary circumstances.
Can you sue a community health center for a stillbirth in New York?
Usually not directly. Many New York community health centers receive federal funding and are covered by the Federal Tort Claims Act (FTCA), so a malpractice claim runs against the United States and must first be presented to the U.S. Department of Health and Human Services (HHS) as an administrative claim, generally within two years. A lawsuit in federal court can follow only after HHS denies the claim or six months pass without a decision.
Can you sue for a miscarriage caused by medical negligence in New York?
Yes. In Broadnax v. Gonzalez, New York's Court of Appeals applied the same rule to miscarriages and stillbirths. A mother whose miscarriage was caused by medical malpractice can recover for her emotional distress without proving a separate physical injury.
What if doctors could not find a cause of the stillbirth?
An unexplained stillbirth does not rule out a New York malpractice claim, but it makes causation harder to prove. The usual first step is having a qualified physician independently review the prenatal records, autopsy, and placental findings.
Getting Answers When You Are Ready
Grief does not follow a schedule, but the evidence that answers a family's questions is easiest to gather early. At Washor Kool Sosa Maiorana & Schwartz, LLP, we review prenatal and delivery records with qualified obstetrician-gynecologists (OB-GYNs) and give New York parents a clear, honest answer about whether the loss may have been preventable.
Our OB-GYN malpractice attorneys offer free consultations and are available 24/7, so you can reach out whenever you are ready. Call 212-406-1700 or visit our office in the Woolworth Building, 233 Broadway #2020, New York, NY 10279.
This article provides general information about New York law and is not legal advice. Every case depends on its own facts, and past results do not predict future outcomes.