Getting a Recovery for Emotional Injury from Mishandling a Dead Fetus

Generally, the law is skeptical in allowing recovery for emotional injuries without an initial physical injury.

However, there is an exception:  the mishandling of a dead body.  We wrote about it previously here.

       The law allows the next of kin to recover for the mishandling of the corpse of  a deceased family member.  The plaintiff need not show that she sustained any physical injury.  Indeed, the claim is solely for emotional injuries.  The injured party need not show medical treatment, such as care by a psychiatrist.

The law is not limited to adult dead bodies.  The law allows a mother to recover for the emotional injury for the mishandling or destruction of her fetus.

Here is an example:

Mary had a stillborn baby in the hospital.  She told the hospital personnel that she wanted to bury the child.  Mary intended to bury the fetus next to the grave of another child who died shortly after birth.   

The hospital told Mary that it had to do an autopsy and various tests before releasing the body.  Mary persisted in trying to reclaim her baby’s body.  She got the a runaround, but after 4 weeks she finally got an answer.  The body was discarded accidentally.

Mary was allowed to recover for the injury of not having her child go to a proper burial as she had planned. 

If you have been injured due to the mishandling of the dead body of a loved family member, please feel free to call me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 2/2/11,


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