Under New York State common law, a personal-injury plaintiff generally is not permitted to seek recovery of purely emotional damages in cases where the plaintiff did not sustain any physical injury, except under limited circumstances. In a recent decision, the New York State Court of Appeals reaffirmed this principle in the context of a prenatal-injury case, holding that a parent may not obtain purely emotional damages for injuries to a fetus later born alive, even when framed as a lack-of-informed-consent claim.
In SanMiguel v. Grimaldi,1 a pregnant woman was admitted to the hospital past her due date and underwent a prolonged induction under the care of her obstetrician. After failed labor and an unsuccessful vacuum-extraction attempt, the doctor performed an emergency C-section. The infant was delivered in grave condition, transferred to intensive care, and died shortly thereafter. The mother brought malpractice and informed-consent claims on behalf of the infant’s estate and asserted her own claims, seeking emotional-distress damages based on an alleged failure to disclose the risks of vacuum extraction.
The doctor moved for summary judgment under a common law rule barring parents from recovering emotional damages where malpractice causes in-utero injury to a fetus born alive. The lower courts declined to dismiss the informed-consent claim, reasoning that the duty to disclose risks are distinct and that the above rule thus should not apply.
On appeal, in a 4–3 decision (with two dissenting opinions), the Court of Appeals reversed and dismissed the emotional injury claims. The court held that lack of informed consent is a statutory form of medical malpractice under Public Health Law § 2805-d and, for emotional-distress purposes, cannot be distinguished from traditional treatment-based negligence. The court also refused to overrule the established common law bar against these types emotional-distress claims, emphasizing New York State’s longstanding skepticism of standalone emotional-distress claims and reaffirming that exceptions remain narrow.
The court noted that the law still allows emotional-distress recovery only when malpractice causes miscarriage or stillbirth. This is a limited exception created to avoid complete provider immunity where neither the fetus nor the mother otherwise had a viable claim. When a fetus is born alive, even briefly, the court emphasized that the infant or the estate retains its own malpractice and wrongful-death claims, eliminating a potential gap in liability.
The SanMiguel decision is a significant victory for health care providers and hospitals. The court upheld decades-old precedent and held that plaintiffs cannot circumvent the common law rule against emotional distress claims by recasting prenatal malpractice as lack of informed consent and seeking purely emotional damages for the mother when the fetus is born alive. However, the two dissenting opinions underscore how contentious this area remains, and medical providers and their attorneys should continue to monitor this area of law for any developments.
If you have any questions regarding the content of this alert, please contact Kara Baker, associate, at kbaker@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Tom Cronmiller or Sanjeev Devabhakthuni, Professional Liability Practice Area co-chairs, at tcronmiller@barclaydamon.com and sdevabhakthuni@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense or Professional Liability Practice Areas.
12025 N.Y. Slip Op. 05780 (Ct. App. 2025).