Shockingly, the infant mortality rate is rising in the United States. More than 6 in 1,000 babies die before, during or shortly after delivery – higher than nearly every other developed nation. Though poorly-understood, this troubling trend is a “national embarrassment,” according to the Washington Post. But hidden behind the numbers are countless families, parents, grandparents and siblings who have actually lost a child.
Without doubt, the unexpected death of a newborn is the hardest thing any family will ever experience. Every family grieves in their own way, but no parent will ever be the same.
Surviving Parents Can File Wrongful Death Lawsuits
After the death of an infant, few parents do not experience shock, despair and confusion. Millions of babies are born safely every year in the United States. Across the country, high-risk pregnancies are managed appropriately, with care and compassion, by experienced medical professionals.
When an infant dies suddenly, the tragedy raises a host of troubling questions. Could anything have been done to save our child? Was this preventable? Why did this happen? These questions are normal, even healthy, and your family deserves answers. At Banville Law, our experienced birth injury attorneys seek answers to these questions for other families every day.
Legal Action After A Newborn’s Death
Every infant’s death is a tragedy, but some deaths are truly unavoidable. In some cases, even the best doctors, using all the care and expertise at their disposal, are unable to prevent the death of a newborn. Negligence never even enters the equation. That isn’t always the case, though. Obstetricians can – and do – make fatal mistakes, inflicting undue harm on infants or missing dangerous health complications that prove deadly.
When a medical professional’s negligence leads to the death of an infant, surviving family members have every right to file a wrongful death lawsuit.
Why File An Infant Wrongful Death Lawsuit?
Pursuing financial compensation will not bring your child back. Nothing can. But if someone else’s carelessness resulted in your child’s death, you should not be forced to bear the burden alone.
Grief is costly. There are many parents who could benefit from emotional counseling but are unable to afford therapy. Some parents experience Post-Traumatic Stress Disorder (PTSD), while others develop stress-related auto-immune disorders. Funerals and burials can be expensive – to say nothing of the time many parents take off work to plan for their child’s services. There is nothing shameful in acknowledging that death is more than an emotional hardship. Filing a wrongful death lawsuit can help families meet these financial challenges directly, or be compensated for their losses after the fact.
Unlike other states, New York does not allow parents to secure damages for their own pain and suffering in wrongful death lawsuits. Damages for mental anguish and loss of companionship, common in other jurisdictions, are also ruled out.
Elements Of A New York Wrongful Death Lawsuit
In order to secure compensation in New York, surviving parents will have to prove five essential facts about their case:
- a death occurred
- the death was caused by the defendant’s “wrongful act, neglect or default”
- the defendant’s negligence gave rise to a cause of action that the deceased would have been able to pursue in a lawsuit if death had not occurred
- the deceased is survived by at least one person who has suffered a loss due to the death
- the deceased’s estate can recover specified damages
These requirements are established in the New York Estates, Powers and Trusts Code, Part 4.
Who Can File A Wrongful Death Lawsuit?
In New York, wrongful death lawsuits can only be filed by the “personal representative” of the deceased person’s estate.
Almost everywhere else, surviving family members (usually parents) are allowed to file wrongful death lawsuits, even if they aren’t executor of the deceased’s estate. That’s not the case in New York, where a parent will have to be appointed “personal representative” for the estate before filing suit. Demands for damages, on the other hand, can be made for losses incurred by surviving family members, even people who haven’t been appointed to administer the deceased child’s estate.
Statute Of Limitations
New York’s statute of limitations for wrongful death lawsuits allows parents up to 2 years to file suit. The time limit begins running on the date of death and must be observed in all cases. File a lawsuit after the statute of limitations has run out and your family will almost certainly have lost the right to pursue legal action entirely.
Lawsuits For Fetal Death In New York
In 1969, the New York Court of Appeals ruled that surviving parents have no legal cause of action in the event of a fetus’ death. This opinion, handed down in Endresz v. Friedberg, 24 N.Y.2d 478, is still frequently observed in New York’s courts.
In short, the state does not recognize claims involving stillbirth or fetal death, even when the death was caused by the outright negligence of a medical professional.
Contact A Newborn Wrongful Death Attorney
We understand that filing a wrongful death lawsuit, and beginning a complex legal process, may seem like the last thing you’d like to do at this moment. This is your decision to make, but due to the strict time requirements governing malpractice lawsuits in New York, we urge you to contact an attorney as soon as possible.
When you’re ready, our experienced infant wrongful death lawyers are here to help. Have questions about your family’s legal options? Contact our attorneys today to learn more in a free consultation. You can learn more about your rights at no charge and no obligation.