Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that Broadnax is flawed, as evidenced by subsequent cases that follow it as precedent. Finally, in Part VI, I will offer a better solution: instead of receiving arbitrary awards in the form of emotional damages, mothers should be given an actual cause of action in the form of Negligent Infliction of Emotional Distress.
Recommended CitationAmanda Campo, An Analysis of New York State’s Flawed Recovery Scheme in Prenatal Malpractice Actions: Why a Claim of NIED Should Be Available to Plaintiffs, 33 Pace L. Rev. 770 (2013)
Available at: http://digitalcommons.pace.edu/plr/vol33/iss2/7