My wife went into labor about three weeks early. She was in labor about 12 hours when the doctor suddenly said that my wife needed an emergency caesarian section. Our baby only lived about a week before she passed. What kind of claims do we have against the doctor?

I am sorry for your loss.

I do not have a simple answer for you. But I can outline the issues an attorney would consider in evaluating this type of case.

Evaluating Liability

First, all malpractice cases need to be evaluated by a licensed physician. An attorney must attach an affidavit of merit to a summons indicating that the lawyer consulted with a physician regarding the liability in this case. CPLR § 3012-a. So the attorney will obtain copies of all of the medical charts. Then an obstetrician will have to evaluate those medical records to figure out what was the cause of this tragedy. If this forensic specialist can determine that the treating doctor had deviated from acceptable standards of care, then your wife has a claim for malpractice. Furthermore, your wife potentially has a claim for lack of informed consent to the caesarian section given your description that the procedure was performed “suddenly” after 12 hours of labor.

Evaluating Damages

Second, assuming that your forensic specialist has determined that you have claims for malpractice and lack of informed consent, an attorney must consider the damages that you could obtain.

Wrongful Death

As explained in a prior post, wrongful death damages are limited to pecuniary loss. That means, that the damages you and your wife could obtain for a wrongful death claim for your daughter are limited to the amount of economic damages. So you can only recover for what you can prove you sustained for a pecuniary loss as a result death of your one week old daughter. Unfortunately, the law would limit the recovery for pecuniary loss.

Personal Injuries for Your Infant Daughter

You never mentioned if your daughter was conscious during her brief life. If a person has sustained personal injuries, they must be injuries that the person has experienced. New York does not recognize so-called hedonic damages while a person remains unconscious. (Hedonic damages are loss of enjoyment of life while a person remains unconscious.) If your daughter was sedated during her lifetime, then she would not have a recovery for her personal injuries.

Mother’s Emotional Distress Claim

There is also a limitation on the damages that your wife could expect to recover from both a malpractice claim as well as a lack of informed consent claim. Your wife has sustained a tremendous emotional loss. It would be difficult to put a dollar figure on this emotional loss. However, even if your wife can prove her obstetrician had committed malpractice, she cannot obtain recovery for purely emotional damages. Sheppard-Mobley v King 4 NY3d 627 (2005).

Unfortunately, the same is true for a claim of lack of informed consent. A patient may not obtain recovery for purely emotional distress, based upon a legal theory of lack of informed consent against a physician. SanMiguel v Grimaldi, _ NY3d _, (October 2025).

In your question, you never mentioned that your wife had sustained any kind of physical injuries. But if your wife had sustained a physical injury as a result of her obstetrician’s malpractice, then she potentially has a claim. But if the baby and your wife medically needed the caesarian section, then your wife’s surgery and scars are not recoverable damages.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.