SanMiguel v. Grimaldi 1: A Close Call on Obstetrical Emotional Damages
By Charles L. Bach, Jr., Alejandra R. Gil, and Greg I. Freedman
Introduction
For more than 20 years, the law in New York State regarding a mother’s ability to recover for her emotional distress damages in an obstetrical malpractice case was well settled. In 2004, the Court of Appeals held in Broadnax v. Gonzalez that these damages were available when medical malpractice causes a miscarriage or stillbirth [2]A year later, in Sheppard-Mobley v. King, the Court of Appeals revisited this issue, holding that a mother cannot recover damages for emotional harm where alleged medical malpractice causes in utero injury to a fetus subsequently born alive. [3]
A clear line in the sand had been drawn. But this line was threatened in May 2024, when the First Department decided SanMiguel v. Grimaldi. [4] Armed with an extremely sympathetic fact pattern, the plaintiff mother argued that Sheppard-Mobley did not preclude her from recovering emotional damages in connection with an informed consent claim against her obstetrician, Dr. Meryl Grimaldi. In a 4-1 decision, the First Department drew a distinction between a medical malpractice claim and an informed consent claim, allowing plaintiff to recover emotional damages on the latter, while also inviting the Court of Appeals to revisit its decision in Sheppard-Mobley, suggesting that the rule barring recovery for emotional damages when the fetus is born alive was “unjust, as well as opposed to experience and logic.”[5] The Appellate Division, First Department subsequently granted defendants leave to appeal to the Court of Appeals and certified the question of whether its order was properly made.
In a 4-3 decision, with two dissenting opinions, the Court of Appeals reversed the First Department, and held that the Sheppard-Mobley rule applies to informed consent claims.[6] The majority also upheld Sheppard-Mobley and the limits it had placed on a mother’s ability to recover for emotional harm.[7] Although the decision was undoubtedly received with a collective sigh of relief amongst obstetrical providers and medical centers, that it came within a single vote of one judge is somewhat alarming. Notwithstanding, we believe that the decision was logical, fair, and consistent with the rule of stare decisis. New York will accordingly continue to follow the rule of Sheppard-Mobley, a decision issued more than 20 years earlier by a respected bench headed by Chief Judge Judith Kaye.
Relevant Facts
Veronica SanMiguel, then 41 weeks pregnant, was admitted to St. Barnabas Hospital, in Bronx, NY, on July 1, 2012, where she came under the care of obstetrician Dr. Meryl Grimaldi for induction of labor. Dr. Grimaldi attempted to deliver the infant by vacuum extraction, but her efforts were unsuccessful. Dr. Grimaldi performed an emergency C-section and although the infant was delivered alive, he was in critical condition requiring life support. The infant was ultimately taken off life support and died eight days later.[8]
SanMiguel suffered no physical injuries during the attempted vacuum extractions or the C-section delivery. Her alleged harm was solely emotional in nature.
Plaintiff claimed that Dr. Grimaldi should have performed a C-section at the outset, and that the delay caused by attempting vacuum extraction contributed to the child developing fetal hypoxia. Plaintiff also claimed that she had not consented to Dr. Grimaldi attempting a vacuum extraction, a means of delivery commonly used in medical centers around the country.
The Decisions of the Bronx Supreme Court and Appellate Division, First Department
The trial court agreed that plaintiff’s medical malpractice claim for emotional damages was barred by precedent; however, it denied summary judgment to Dr. Grimaldi on plaintiff’s claim for lack of informed consent. The lower court determined that triable issues of fact existed as to whether Dr. Grimaldi obtained adequate informed consent for the vacuum extractions and whether the alleged lack thereof caused plaintiff’s emotional distress.[9]
Dr. Grimaldi appealed to the Appellate Division, First Department, arguing that Sheppard-Mobley barred plaintiff from recovering for any emotional harm she suffered as a result of the alleged failure to obtain her informed consent. Accordingly, her claim for lack of informed consent, a species of medical malpractice, must be dismissed.[10]
Plaintiff countered with an argument that her claim for lack of informed consent should be treated differently than her claim for medical malpractice, because an expectant mother is inextricably bonded with her fetus and she “played a role” in allowing Dr. Grimaldi to perform the vacuum extraction that allegedly caused the child’s injury. According to plaintiff, Sheppard-Mobley’s bar on recovering emotional damages for in utero injuries did not extend to claims for lack of informed consent.[11]
The First Department affirmed the trial court’s order with respect to Dr. Grimaldi holding that Sheppard-Mobley does not apply to lack of informed consent claims. The majority then made a plea to the Court of Appeals to abandon the well-reasoned, unanimous opinion in Sheppard-Mobley and issue a sweeping rule that a mother whose child suffers injury in utero can now recover damages for purely emotional distress, even when the child survives delivery.[12]
Arguments Made to the Court of Appeals
Defendants’ Arguments. In arguing that plaintiff’s lack of informed consent claim is subject to the Sheppard-Mobley rule, defendants highlighted that Public Health Law §2805(d), which codified New York’s law on informed consent, was specifically meant to limit medical malpractice claims based upon a lack of informed consent. In that regard, the title of the statute, the statutory text, legislative history, and decades’ worth of case law interpreting the statute make it clear that a claim for lack of informed consent is simply a species of medical malpractice. Hence, the Sheppard Mobley rule applies equally to both claims, and a plaintiff is only entitled to the same damages under either claim. Finally, defendants argued that plaintiff’s arguments about the mother’s role in consenting to certain obstetrical care would lead to absurd results, since parents must consent to treatment for minor children of any age. [13]
Defendants also argued that the Court of Appeals should adhere to the principles of stare decisis and reject the Appellate Division’s invitation to revisit Sheppard-Mobley, for four reasons:[14]
1. Sheppard-Mobley is a relatively recent, well-established, unanimous decision. Unlike in other cases in which the Court of Appeals has overturned its own precedent, here, there are no societal changes or policy concerns that have arisen since Sheppard-Mobley was decided that would warrant such a drastic reversal by the Court.[15]
2. Defendants argued that the Sheppard-Mobley rule is well-reasoned, has proven to be workable, and has not created inconsistent results.[16]
3. Defendants argued that unlike many of the states that allow recovery for emotional distress in comparable situations, New York does not have statutory caps on damages. Overturning Sheppard-Mobley would have far-reaching, draconian consequences for the obstetricians, nurses, and medical centers that provide obstetrical care in New York. This fact significantly outweighs any individual plaintiff’s claimed need for compensation for emotional harm.[17]
4. Defendants argued that the Court should refrain from addressing this issue while the state’s Legislative and Executive branches consider the proposed Grieving Families Act, which, if passed, would allow recovery of purely emotional damages in connection with a wrongful death claim.[18.]
Plaintiff’s Arguments. As she did in the Appellate Division, plaintiff argued that a claim for lack of informed consent “implicates different interests” than one for ordinary medical malpractice, emphasizing the physical connection between a mother and her child during delivery and, essentially, the guilt that a mother faces from knowing her decisions caused the child harm.[19]
Plaintiff’s main argument for reversal of Sheppard-Mobley was that the decision is unfair and reflects an antiquated view of damages that many states no longer follow. She also repeatedly contended that the rule discriminates against women and that society has evolved in the last twenty years to the point where Sheppard-Mobley is no longer socially acceptable.[20]
Arguments Raised in Amicus Briefs
The New York Trial Lawyers Association and New York State Academy of Trial Lawyers collectively argued, in support of plaintiff, that Sheppard-Mobley creates arbitrary distinctions based on the survival of the infant, leading to unjust outcomes. They further argued that Sheppard-Mobley reduces a negligent provider’s exposure if the child is born “alive” but unconscious, nonviable, or clinically/legally dead at delivery, while simultaneously precluding the child’s own claims absent proof of conscious pain and suffering. They posited that New York’s approach conflicts with public policy and broader negligent infliction of emotional distress principles that otherwise permit recovery for direct, foreseeable emotional harms to immediate family members in analogous contexts. The amici argued that New York should fall in line with other states that allow recovery for emotional damages under similar circumstances.
Not surprisingly, the amici did not address the fact that most of these other states have statutory caps on noneconomic damages.[21]
The Defense Association of New York, Inc., Greater New York Hospital Association, and Medical Society of the State of New York submitted briefs in support of defendants collectively arguing that because New York lacks statutory caps on noneconomic damages, allowing recovery of emotional damages would exacerbate New York’s high‑risk medical liability environment, especially for obstetricians/gynecologists, and should be left to policymakers (specifically those considering the Grieving Families Act) due to the potential for unintended consequences. They argued that high and unpredictable noneconomic awards contribute to elevated malpractice premiums exceeding $190,000 per year for an obstetrician, physician practice limitations, and the departure from obstetrical practice of numerous well qualified OB/GYNs that could reduce access to and affordability of reproductive care in New York, particularly in historically underserved communities.[22]
The Court of Appeals Reverses the First Department and Declines Its Invitation to Overrule Sheppard-Mobley
The Majority Opinion. In a split 4-3 decision, the Court of Appeals rejected the First Department majority’s artificial distinction between a lack of informed consent claim and a traditional medical malpractice claim and held that Sheppard-Mobley applied to both with equal force. Adopting defendants’ arguments, the Court recognized that lack of informed consent claims are “a distinct theory of medical malpractice liability” and that while “Sheppard-Mobley involved a ‘traditional’ medical malpractice claim, its holding was clear: a birthing parent may not ‘recover damages for emotional harm where . . . alleged medical malpractice causes in utero injury to the fetus, subsequently born alive.’”[23] The Court further held that “there is no legal or logical reason to treat lack of informed consent claims differently from traditional medical malpractice claims for present purposes [as they] both seek recovery for injuries resulting from a medical procedure performed in breach of a professional duty.”[24]
The Court also declined the First Department majority’s plea to overrule Sheppard-Mobley. Again adopting defendants’ arguments, the Court observed that plaintiff had failed “to demonstrate that anything decisive has changed in the 20 years since Sheppard-Mobley was unanimously decided” that would warrant a departure from stare decisis.[25] The Court further reinforced that the rule of Sheppard-Mobley has not only proven workable in practice, but that it “fits comfortably within New York’s tort jurisprudence disfavoring recovery for purely emotional injuries.” [26] In reaching its holding, the Court both rejected any notion that Sheppard-Mobley “subjects plaintiffs to arbitrary limits,” and agreed with defendants that the out-of-state cases plaintiff relied on “do not evidence the type of progress or new justification that would warrant charting a new course” in New York.[27]
While acknowledging the tragic facts of SanMiguel’s case, the Court ultimately held that there was no compelling justification under stare decisis principles to abandon the “relatively recent and unanimous precedent” set by Sheppard-Mobley.[28]
The Dissenting Opinions. Chief Justice Wilson and Justice Rivera authored separate dissenting opinions, with Justice Troutman concurring with Justice Rivera. Justice Rivera, chronicling the history of New York’s jurisprudence on emotional damages claims, posited that “[the majority’s] holding cannot be justified by logic, coherent reasoning, or traditional tort law principles” and that “it is also out of line with an emerging scientific consensus about the trauma associated with childbirth and the physical manifestations of illnesses like PTSD, along with our evolving tort jurisprudence more generally.”[29] Justice Rivera proclaimed that Sheppard-Mobley should be overruled to allow mothers’ recovery for their emotional damages stemming from childbirth-related medical malpractice, regardless of whether the infant is born alive or deceased.[30]
Chief Justice Wilson proposed a pathway for plaintiffs such as SanMiguel to recover for their emotional damages, without disturbing the Sheppard-Mobley rule: “[L]et the plaintiff pursue both the infant’s estate’s claim for wrongful death and the parent’s claim for emotional damages, but recover for only one. Allowing both avenues of relief but limiting the plaintiff to recovery of the greater would close the gap left by our existing caselaw without displacing it. The remaining factual issues: how much to award for a mother’s emotional injury or how much to award for a deceased child’s pain and suffering—are the same issues that our courts decide under our existing caselaw.”[31]
Impact on the Defense of Obstetrical Malpractice Cases
Medical providers, specifically obstetricians and the hospitals where they practice, were awarded a well-deserved albeit narrow victory by the Court of Appeals in the SanMiguel case. The emotional component of SanMiguel’s claims cannot be denied, but neither can the massive expansion of liability and resulting consequences that would have flowed from Sheppard-Mobley being overturned.
Although providers remain shielded from a mother’s claim for emotional damages when the infant is born alive, the 4-3 vote is somewhat unsettling. Plaintiff procured amicus briefs from two leading plaintiffs’ bar associations, the New York Trial Lawyers Association, and the New York State Academy of Trial Lawyers, both of whom have also been proponents of the Grieving Families Act. These associations, along with the broader plaintiffs’ bar, are likely to continue advancing similar cases in hopes that a different bench on the Court will eventually revisit these issues.
Consequently, while SanMiguel preserves the current framework, providers should anticipate continued challenges to the limits on emotional distress damages in obstetrical malpractice cases. Medical providers, their insurers, and counsel must continue to advocate for adherence to Sheppard-Mobley, highlighting the potential detrimental impact its reversal would have on both malpractice insurance premiums and the public at large whose future health care may be limited, and the availability of quality obstetrical care throughout New York State if liability is expanded in the absence of statutory caps.
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Dr. Grimaldi is represented by Barker Patterson Nichols, LLP with Heidell, Pittoni, Murphy & Bach, LLP serving as appellate counsel at the Court of Appeals.
St. Barnabas Hospital is represented by Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, PPP with Pillsbury Winthrop Shaw Pittman LLP serving as Appellate Counsel in the Court of Appeals.
Charles L. Bach, Jr. is a partner at Heidell, Pittoni, Murphy & Bach, LLP; Alejandra R. Gil is a partner at Heidell, Pittoni, Murphy & Bach, LLP, and Greg I. Freedman is a partner at Heidell, Pittoni, Murphy & Bach, LLP.
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1 SanMiguel v. Grimaldi, 2025 N.Y. LEXIS 1767 * | 2025 NY Slip Op 05780 ** | 2025 LX 408474 | 2025 WL 2955744 (NY 2025).
2 Broadnax v. Gonzalez, 2 N.Y.3d 148, 155 (2004).
3 Sheppard-Mobley v. King, 4 N.Y.3d 627, 637 (2005).
4 SanMiguel v. Grimaldi, 229 A.D.3d 152 (1st Dept 2024).
5 Id. at 163.
6 SanMiguel, 2025 N.Y. LEXIS 1767 *1.
7 Id.
8 Id. at *1-2.
9 SanMiguel v Grimaldi, 2020 N.Y. Misc. LEXIS 50881 (Bx. Co. Sup. Ct. 2020).
10 SanMiguel, 229 A.D.3d 152.
11 Id.
12 Id. at 160-166.
13 Brief for Appellant Grimaldi, SanMiguel v. Grimaldi, APL-2024-00109 (NY 2024).
14 Id.
15 Id. at 22-33.
16 Id.
17 Id.
18 Id.
19 Brief for Respondent SanMiguel, SanMiguel v. Grimaldi, APL-2024-00109 (NY 2024).20 Id.
21 Briefs for the New York Trial Lawyers Association and the New York State Academy of Trial Lawyers as Amici Curiae for Respondent, SanMiguel v. Grimaldi, APL-2024-00109 (NY 2024).
22 Briefs for the Defense Association of New York, Inc., Greater New York Hospital Association, and Medical Society of the State of New York as Amici Curiae for Appellants, SanMiguel v. Grimaldi, APL-2024-00109 (NY 2024).
23 SanMiguel, 2025 N.Y. LEXIS 1767 *13, quoting Sheppard-Mobley, 4 N.Y.3d at 634.
24 Id. at *13-14.
25 Id. at *15.
26 Id. at 16-17.
27 Id. at 17-18.
28 Id. at 18.
29 Id. at 22.
30 Id.
31 Id. at 77.