New York wrongful death claims must be commenced within two years from the date of death under EPTL §5-4.1, with no infancy toll. Public-hospital cases require a 90-day Notice of Claim under GML §50-e. Per EPTL §5-4.3 (current law), recoverable damages are limited to "pecuniary injuries" — economic losses to surviving distributees — plus reasonable medical and funeral expenses. New York is among the minority of states that do not currently permit emotional-distress damages in wrongful death actions, though the Grieving Families Act has been passed multiple times by the Legislature and vetoed each time by Governor Hochul. Per Endresz v. Friedberg, 24 N.Y.2d 478 (1969), wrongful death actions cannot be maintained for stillbirth or miscarriage in New York — though under Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004), mothers can recover for emotional distress from medical malpractice causing stillbirth without proving independent physical injury. Porter Law Group represents New York families in birth-related wrongful death cases.
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Wrongful death cases in birth injury contexts pose unusual complexity because New York case law treats the death of an unborn child differently from the death of a child born alive. The legal framework requires careful analysis of (a) whether the child was born alive or died in utero, (b) the timing of the death relative to delivery, (c) whether the mother has a separate claim for emotional distress under Broadnax v. Gonzalez, (d) the procedural requirements specific to wrongful death (estate administrator appointment under EPTL §5-4.1), and (e) the tax-related provisions of EPTL §5-4.3(c) for medical malpractice cases.
Porter Law Group has recovered more than $500 million for seriously injured clients since 2009. Led by Harvard-educated attorney Michael S. Porter, a former U.S. Army JAG Corps Captain with over 20 years of trial experience, the firm retains maternal-fetal medicine specialists, neonatologists, perinatal pathologists, life care planners, and forensic economists for damages calculation on every wrongful death case. Seven of eight partner-level attorneys are recognized by Super Lawyers, a distinction earned by fewer than 5% of New York attorneys. For more on emotional distress claims related to pregnancy loss, see Porter's published article on Broadnax v. Gonzalez and Emotional Distress Claims for Birth Injuries in New York.
"Wrongful death birth injury cases come with two distinct legal pathways depending on whether the child was born alive. If the baby was born alive and died after delivery, both a wrongful death action under EPTL §5-4.1 and a survival action under EPTL §11-3.2 are available — with the conscious pain and suffering damages from the survival action often substantial. If the baby was stillborn, Endresz v. Friedberg bars the wrongful death claim, but the mother still has her own claim under Broadnax v. Gonzalez for emotional distress. Knowing which framework applies is the foundation of the case."
— Michael S. Porter, J.D., Porter Law Group
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A wrongful death birth injury claim is a civil action seeking compensation when negligent obstetric care results in the death of an infant or mother. Per EPTL §5-4.1, the claim is brought by the personal representative of the decedent's estate against the person or entity whose wrongful conduct caused the death — and "must be commenced within two years after the decedent's death."
The legal framework involves three potential causes of action that can apply in birth-related death cases:
| Cause of Action | Who Can Bring | What It Covers | Statute |
| Wrongful death action | Personal representative of decedent's estate, on behalf of distributees | Pecuniary losses to surviving distributees; medical and funeral expenses | EPTL §5-4.1 (2-year statute from date of death) |
| Survival action | Personal representative of decedent's estate | Decedent's conscious pain and suffering between time of injury and time of death | EPTL §11-3.2(b) |
| Mother's emotional distress claim | Mother (in her own right) | Mother's emotional injury from stillbirth or miscarriage caused by medical malpractice | Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004) |
The interplay among these three causes of action depends on critical factual circumstances: was the child born alive, was there a period of conscious pain and suffering, and what is the mother's own injury status?
This is the single most important legal distinction in birth-related wrongful death cases. New York case law has long held that the death of a stillborn fetus does NOT support a wrongful death cause of action — but a child born alive who later dies (even minutes after birth) DOES support a wrongful death claim.
Per Endresz v. Friedberg, 24 N.Y.2d 478 (1969) — the controlling New York Court of Appeals case — a wrongful death action cannot be maintained in New York for the death of a stillborn fetus. The case arose from a 1965 motor vehicle accident: a seven-months-pregnant mother was injured and delivered stillborn twins two days later. The Court of Appeals held that the wrongful death statute does not extend to a stillborn fetus because (a) wrongful death recovery is for "pecuniary injuries" to distributees, which would be speculative for a never-born child; and (b) the parents have remedies in their own right (mother for her physical injury and emotional suffering, father for loss of services and consortium).
Per Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004), the New York Court of Appeals held that a mother CAN recover for emotional distress from medical malpractice causing stillbirth or miscarriage without proving an independent physical injury distinct from that of the fetus. The decision overturned the prior Tebbutt v. Virostek (1985) requirement that the mother prove a separate physical injury before recovering emotional distress damages. Justice Rosenblatt, writing for the majority, recognized that "the stillbirth of a wanted child is a tragic event, and medical malpractice leading to that result may give rise to liability." Porter Law Group has published a detailed analysis of this important case at our Broadnax v. Gonzalez article.
The October 2025 New York Court of Appeals decision (verified at the official NY Courts website) reaffirmed that Endresz v. Friedberg remains controlling and that "New York law does not recognize wrongful death or life claims brought by the personal representative of a stillborn fetus." This is current law as of 2026.
If the child is born alive — even for only minutes — and then dies, the full EPTL §5-4.1 wrongful death framework applies, plus the EPTL §11-3.2 survival action for conscious pain and suffering during the period between injury and death.
Per EPTL §5-4.3, damages in a New York wrongful death action are limited to "pecuniary injuries" plus specific enumerated expenses. The recoverable categories are:
Pecuniary losses to distributees. The economic losses to distributees from the decedent's death — which for an infant decedent involves projecting what the infant would have contributed economically over a lifetime. Courts have recognized that pecuniary injuries include loss of support, loss of parental guidance and assistance (when a parent dies leaving children), and loss of inheritance — though these are notoriously difficult to prove for an infant decedent because there is no employment history.
Reasonable medical expenses incident to the injury causing death. Hospital bills, NICU charges, attempted treatment for the dying infant or mother.
Reasonable funeral expenses paid by distributees.
Punitive damages are recoverable per EPTL §5-4.3(b) when the death occurred on or after September 1, 1982, if punitive damages would have been recoverable had the decedent survived.
Tax considerations under EPTL §5-4.3(c). In medical malpractice and dental malpractice cases specifically, evidence of the federal, state, and local personal income taxes the decedent would have been obligated to pay is admissible, and the jury must consider these taxes in determining the sum available for support. This provision is unique to medical and dental malpractice wrongful death cases.
Conscious pain and suffering (survival action under EPTL §11-3.2). Damages for the decedent's pain and suffering between the time of injury and the time of death — recovered through a separate survival action that can be combined with the wrongful death action. Survival action damages can be substantial when the decedent suffered between injury and death.
The Grieving Families Act has been passed by the Legislature multiple times and vetoed each time. The pending S4423/A6063 (2025-2026) versions remain pending. If signed into law, the Act would expand recoverable damages to include grief and anguish, loss of love and society, and would extend the statute of limitations to 3 years 6 months. As of April 2026, the Act has not been signed into law and EPTL §5-4.3 remains "pecuniary injuries" only.
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Porter Law Group's published catastrophic case results include three pediatric birth injury settlements that demonstrate the firm's track record in complex obstetric injury cases. View all case results →
$8,300,000 Settlement: A premature infant suffered profound permanent disabilities, including cerebral palsy, after physicians failed to properly manage the mother's pre-gestational diabetes. The structured settlement provides lifetime care and therapy funding.
$8,250,000 Settlement: An infant sustained permanent physical and cognitive disabilities after delayed response to fetal distress during labor. Proceeds covered lifetime medical and educational needs.
$8,120,000 Settlement: An infant suffered permanent delivery-related injuries caused by mismanaged labor and delivery. The recovery funded a life-care plan built with the family's physicians and therapists.
Every case is different. Past results do not guarantee future outcomes.
Wrongful death claims in birth injury contexts have unique timing rules that differ from standard medical malpractice claims.
| Category of Claim | Statute of Limitations | Infancy Toll | Effective Deadline | Primary Statute |
| Wrongful death of infant | 2 years | No — applies to time-of-death | 2 years from date of death | EPTL §5-4.1 |
| Wrongful death of mother | 2 years | N/A | 2 years from date of death | EPTL §5-4.1 |
| Survival action (conscious pain and suffering) | Coordinated with wrongful death timing under CPLR §214-a and EPTL §11-3.2(b) | Coordinated with wrongful death | Generally 2 years from death | EPTL §11-3.2(b) + CPLR §214-a |
| Mother's emotional distress claim (Broadnax v. Gonzalez) | 2.5 years from malpractice | No — adult plaintiff | 2.5 years from malpractice | CPLR §214-a |
| Public hospital wrongful death | Notice of Claim within 90 days of death | No | 90 days from death | GML §50-e |
The 2-year EPTL §5-4.1 deadline is shorter than the 2.5-year medical malpractice statute and is NOT tolled by infancy — because the wrongful death claim is brought by the personal representative on behalf of the decedent's distributees, not on behalf of an infant whose own minority would trigger CPLR §208 tolling. Where the deceased is the mother, the same analysis applies because the mother is the adult patient. (LaBello v. Albany Med. Ctr., 85 N.Y.2d 701 (1995), remains the controlling case on the related question of when a surviving child's medical malpractice claim for prenatal injuries accrues — at live birth.)
A separate procedural requirement: the wrongful death action requires appointment of a personal representative of the decedent's estate (typically through Surrogate's Court) before suit can be filed. This appointment process can take time — meaning families should consult an attorney as soon as possible after the death to begin the appointment process simultaneously with case investigation.
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Lost a Child Due to Medical Negligence in New York?
Find out whether oxygen deprivation, delayed delivery, or delayed cooling treatment may have contributed to your child’s hypoxic-ischemic encephalopathy.
1. Request the complete labor-and-delivery, postpartum, neonatal, and autopsy records. Under Public Health Law §18, you are entitled to the complete medical records within a reasonable time of a written request. Critical documents include all prenatal records, the labor admission, the operative delivery note, the neonatal resuscitation record, NICU records (if applicable), the death certificate, the autopsy report, and any placental pathology.
2. Preserve the placenta and any pathological specimens. Placental pathology is critical in determining whether placental abruption, infection (chorioamnionitis), umbilical cord compromise, or other placental causes contributed to the death. Most hospitals discard placentas within a defined retention period unless preservation is requested.
3. Begin Surrogate's Court estate administration. The wrongful death action requires appointment of a personal representative of the decedent's estate. Begin the appointment process promptly — this can take weeks and runs parallel to the case investigation.
4. Document the timeline of events. Reconstruct from records and your own memory: when did the team first identify a concerning issue, what action was taken and when, how did the situation progress, what was communicated to you and when, what were the cord blood gas values and Apgar scores at delivery, what resuscitation efforts were attempted.
5. Document maternal injuries and emotional distress. If the mother has a Broadnax v. Gonzalez emotional distress claim, contemporaneous documentation of mental health treatment, lost work, and the emotional impact is core evidence. The mother's claim runs on a separate 2.5-year CPLR §214-a statute and follows a different framework from the wrongful death action.
6. Act immediately if the death occurred at a public hospital. Notice of Claim within 90 days of death is required for GML §50-e cases. The 90-day window is unforgiving.
7. Consult a New York wrongful death birth injury attorney promptly. Porter Law Group offers free consultations on a contingency-fee basis and handles every stage of the case, including Surrogate's Court estate administration coordination.
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Porter Law Group represents families in wrongful death birth injury and related birth injury malpractice cases throughout New York State, with a statewide practice reaching every county and jurisdiction. Our Syracuse headquarters serves Central and Upstate New York, while attorneys travel regularly to downstate courthouses for cases in the five boroughs, Westchester, and Long Island.
Serving Clients statewide, including Wrongful Death Birth Injury Attorney in Syracuse, New York City, Manhattan, Buffalo, Rochester, Albany, Yonkers, White Plains, Utica, Binghamton, Long Island (Nassau and Suffolk Counties), Saratoga Springs, Ithaca.
Wherever your child or you were injured in New York, call (833) PORTER-9 for a free consultation with an experienced wrongful death birth injury attorney.
No, New York law does not currently recognize a wrongful death cause of action for a stillborn fetus. Per Endresz v. Friedberg, 24 N.Y.2d 478 (1969), the New York Court of Appeals held that the wrongful death statute does not extend to a stillborn fetus. This holding was reaffirmed by the New York Court of Appeals in October 2025. However, the mother CAN recover for emotional distress from medical malpractice causing the stillbirth without proving an independent physical injury, per Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004). The legal pathway in stillbirth cases is therefore the mother's own emotional distress claim under Broadnax, not a wrongful death action under EPTL §5-4.1. Porter Law Group has published a detailed analysis of Broadnax v. Gonzalez and emotional distress claims for birth injuries at our published article.
If the child was born alive — even for only minutes — and then died, both a wrongful death action under EPTL §5-4.1 and a survival action for conscious pain and suffering under EPTL §11-3.2(b) are available. The wrongful death action recovers pecuniary losses to distributees plus medical and funeral expenses. The survival action recovers the decedent infant's conscious pain and suffering between the time of injury and the time of death — which can be substantial when a neonate suffered hypoxic injury, was on life support, or experienced other documented suffering. The two actions are typically combined in a single lawsuit prosecuted by the personal representative of the infant's estate, who must be appointed through Surrogate's Court before the suit can be filed.
Wrongful death claims in New York must be commenced within two years from the date of death under EPTL §5-4.1 — a deadline that is shorter than the 2.5-year medical malpractice statute and is NOT tolled by infancy. Public-hospital cases require Notice of Claim within 90 days of the death under GML §50-e. Survival actions for conscious pain and suffering are coordinated with the wrongful death action and follow CPLR §214-a. Mother's emotional distress claims under Broadnax v. Gonzalez run on the mother's own 2.5-year CPLR §214-a statute. The procedural requirement that a personal representative be appointed through Surrogate's Court before suit can be filed adds practical timing pressure, families should consult an attorney as soon as possible after the death.
Per EPTL §5-4.3, recoverable damages in a wrongful death action are limited to "pecuniary injuries" — economic losses to surviving distributees, plus reasonable medical expenses incident to the injury causing death and reasonable funeral expenses. The pecuniary loss for an infant decedent is notoriously difficult to prove because there is no employment history, but courts have recognized loss of services, loss of inheritance, and loss of parental guidance (when a parent dies) as compensable pecuniary categories. Punitive damages are recoverable per EPTL §5-4.3(b) if the death occurred on or after September 1, 1982 and punitive damages would have been recoverable had the decedent survived. Conscious pain and suffering damages from a separate survival action under EPTL §11-3.2(b) can be substantial. New York does not currently recognize emotional distress damages in wrongful death actions — though the Grieving Families Act has been passed by the Legislature multiple times and vetoed each time by Governor Hochul.
The Grieving Families Act is proposed legislation that would amend EPTL §5-4.1,§5-4.3, and related provisions to expand recoverable damages and standing in New York wrongful death actions. The proposed changes include: (a) extending the statute of limitations from 2 years to 3 years 6 months; (b) permitting recovery for grief and anguish, loss of love and society, and loss of consortium (currently barred by the "pecuniary injuries" limitation); and (c) expanding standing to include "close family members" beyond the current "distributees" definition. The Act has been passed by the New York State Legislature multiple times — most recently in versions S6636/S8485 (2023-2024) and S4423/A6063 (2025-2026) — and vetoed each time by Governor Hochul. As of April 2026, the Act has not been signed into law and current New York wrongful death law remains "pecuniary injuries" only.
Yes, but only in specific circumstances. For stillbirth or miscarriage: the mother has her own claim for emotional distress under Broadnax v. Gonzalez, 2 N.Y.3d 148 (2004), without needing to prove independent physical injury. The father generally cannot claim emotional distress for the pregnancy loss but may pursue a loss of consortium claim for impact on the marital relationship. For infant death after live birth: the wrongful death action under EPTL §5-4.1 captures the distributees' (parents') pecuniary losses; parents may also have separate derivative claims under CPLR §214-a for medical expenses they paid on the child's behalf, but emotional distress claims are limited under current New York law. Maternal injuries (uterine rupture, hemorrhage, hysterectomy) follow the mother's own 2.5-year CPLR §214-a statute — see our Maternal Medical Negligence practice page for detail.
A wrongful death action and a survival action are two distinct claims that often appear together in the same lawsuit. A wrongful death action under EPTL §5-4.1 is brought on behalf of the decedent's distributees to recover their pecuniary losses from the death. The damages flow to the distributees (typically surviving spouse, children, parents). A survival action under EPTL §11-3.2(b) is brought on behalf of the decedent's estate to recover damages the decedent could have recovered if they had survived — most commonly conscious pain and suffering between the time of injury and the time of death. The damages flow to the estate. Both actions are typically prosecuted by the personal representative of the estate. In birth-related cases, the survival action's conscious pain and suffering component can be substantial when a neonate suffered hypoxic injury, was on life support, or experienced documented suffering between the time of injury and death.
Public-hospital wrongful death cases face a particularly tight deadline: a Notice of Claim must be filed within 90 days of the death under GML §50-e. The 90-day window is unforgiving and is not tolled by anything in standard wrongful death cases. After Notice of Claim is filed, suit must be commenced within 1 year and 90 days. Public hospitals subject to GML §50-e include NYC Health + Hospitals facilities, SUNY Upstate, SUNY Downstate, Stony Brook, and any county-run facility. If the 90-day deadline is missed, families may move for leave to serve a late notice of claim under GML §50-e(5) — discretionary judicial relief that requires a showing of reasonable excuse and lack of substantial prejudice to the public entity. This relief is never guaranteed. The 90-day deadline applies whether the death is of an infant, mother, or both.
Michael S. Porter is the founder and managing partner of Porter Law Group, representing New York families in Klumpke palsy, birth injury, medical malpractice, and catastrophic injury cases. A graduate of Harvard University (B.A., 1994) and Syracuse University College of Law (J.D., 1997), Porter served four years as a Captain in the U.S. Army Judge Advocate General's Corps. Selected to Super Lawyers for 14 consecutive years (2012–2025), he holds a 10.0 Superb rating on Avvo and a Distinguished rating from Martindale-Hubbell.
Bar Admissions: New York State Bar | U.S. District Court, Northern and Western Districts of New York
Memberships: New York State Bar Association, Onondaga County Bar Association, New York State Academy of Trial Lawyers, Multi-Million Dollar Advocates Forum
If your family experienced a birth-related death in New York due to medical negligence, the deadlines run differently than for other birth injury cases. The 2-year EPTL §5-4.1 wrongful death statute is shorter than the 2.5-year medical malpractice statute and is not tolled by infancy. Public-hospital cases require Notice of Claim within 90 days of death. The mother's separate emotional distress claim under Broadnax v. Gonzalez runs on its own 2.5-year statute.
Contact Porter Law Group today at (833) PORTER-9 for a free, no-obligation consultation. We operate on a contingency-fee basis under Judiciary Law §474-a, so you pay nothing unless you win.
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