A wrongful birth occurs when, during a pregnancy, a medical professional fails to inform parents of potential birth defects or malformations that result in disability. This means that one or more medical professionals either failed to adequately perform or interpret prenatal testing or withheld key information about the baby’s health. In so doing, the professionals prevented the parents from making an informed decision about how to proceed with their pregnancy (1).
Unlike a disability caused by birth injury, disabilities in a case of wrongful birth are not caused during labor and delivery but are instead the result of genetic or congenital factors not properly diagnosed or reported prenatally. In some states, the parents of a child with this type of disability are able to pursue a medical malpractice lawsuit against medical professionals for failure to inform the family of these disabilities prior to their birth. In lawsuits of this sort, the parents claim that if the doctor had properly tested, learned of abnormalities prenatally, and warned them about the risks of genetic or congenital disease, they would have made the decision to terminate their pregnancy. Compensation from successful wrongful birth lawsuits can help cover costs including therapy, care, equipment, surgery, and more.
Birth defects and wrongful birth
Birth injuries (like cerebral palsy or hypoxic-ischemic encephalopathy (HIE)) are different from birth defects (like congenital heart disease or spina bifida). A birth injury most often occurs to a healthy baby as a result of complications during labor and delivery, while a birth defect occurs due to some type of genetic or predisposing factor. Wrongful birth cases are specifically associated with birth defects, not birth injuries.
Some of the most common birth defects related to wrongful birth cases include:
- Anencephaly: A serious birth defect in which the baby is born without parts of the brain and skull.
- Spina bifida: A birth defect that occurs when the bones of the spine do not form properly around the baby’s spinal cord.
- Cystic fibrosis: A disease in which fluids in the body become thick, blocking tubes and ducts, and potentially making it more difficult for the baby to breathe over time.
- Holoprosencephaly (HPE): A birth defect that often results in severe skull and facial defects.
- Down syndrome: A genetic disorder that is characterized by a set of developmental delays and some degree of intellectual disability.
Prenatal genetic screening tests
These birth defects are detectable with prenatal testing during the pregnancy. There are two main types of prenatal genetic tests (2):
- Genetic screening tests: These tests reveal the chances that your fetus has a genetic disorder.
- Genetic diagnostic tests: These tests are done on fetal or placental cells obtained through chorionic villus sampling (CVS) or amniocentesis to determine if the fetus has a disorder.
Medical professionals have a responsibility to inform parents about any abnormalities in their developing baby found from these tests, along with any possible health risks that can accompany these abnormalities. When properly informed, parents can make an informed decision about what to do. In cases of wrongful birth, however, parents are not informed about the risks of congenital defects, and therefore do not have the opportunity to make an informed decision about the status of their pregnancy.
Doctors should inform all pregnant women of their right to have genetic testing performed (3). If your doctor finds that, based on you and your partner’s genetic histories, your baby may be at increased risk for genetic disorders or birth defects, he or she may suggest certain additional genetic testing.
Pursuing a wrongful birth lawsuit
If a physician fails to inform parents of the risks or complications associated with their pregnancy, this can be a form of medical malpractice (1). In a wrongful birth lawsuit, parents usually claim that due to the negligence of their physician, they were unable to make an informed decision about whether to continue their pregnancy. There are four main criteria that must be met if parents are to file a wrongful birth lawsuit:
- A patient-doctor relationship must exist. In other words, the parents must have received some sort of medical diagnosis or advice from the doctor.
- The physician must exhibit negligence by failing to disclose crucial information about the risks of genetic or congenital disease to the parents.
- The plaintiffs in the case (the parents/family) must be subject to harm (having a child with a significant disability or health condition and being denied the opportunity to make an informed choice).
- The physician’s negligence must be the cause of the harm. This means that if the physician had provided parents with information about their risks, the parents would have decided to terminate the pregnancy.
If these four criteria are met, then the situation can likely be classified as a wrongful birth case and may be considered for a medical malpractice lawsuit.
**Note: At the present time (updated February, 2019), some states do not allow parents to pursue wrongful birth lawsuits at all, including Arizona, Idaho, Indiana, Michigan, Minnesota, Missouri, North Dakota, North Carolina, Pennsylvania, South Dakota, and Utah (4)
What happens if I win a wrongful birth lawsuit?
Parents who successfully sue for the wrongful birth of their child are compensated for the costs of their child’s care, which can include the costs of medical equipment, surgeries, therapies, and other costs associated with caring for a child with disabilities. In some states, parents may opt to receive additional damages for the emotional and psychological pressures involved in raising a child with birth defects.
Our trusted medical malpractice attorneys
If you suspect your family was the victim of medical malpractice related to wrongful birth resulting in a serious genetic or congenital defect, call the award-winning birth injury attorneys at ABC Law Centers. With over 100 years of joint legal experience, our legal team has the education, qualifications, and dedication required to succeed. We’ve handled cases involving several different birth complications, and numerous instances of medical malpractice related to obstetrics, prenatal, and neonatal care. Our team helps clients all over the country. We can handle wrongful birth cases in states that allow them or offer referral and provide more information when necessary.
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- Wrongful Birth and Wrongful Life Lawsuits. (n.d.). Retrieved February 18, 2019, from https://injury.findlaw.com/medical-malpractice/wrongful-birth-and-wrongful-life-lawsuits.html
- Women’s Health Care Physicians. (n.d.). Retrieved February 18, 2019, from https://www.acog.org/Patients/FAQs/Prenatal-Genetic-Screening-Tests?IsMobileSet=false
- Fink, J. L. (2014, August 19). Should I Get Genetic Testing? Retrieved February 18, 2019, from https://www.thebump.com/a/should-i-get-genetic-testing
- Wilson, T. (2017, March 22). Texas Could Join States Allowing Doctors to Lie to Pregnant People (Updated). Retrieved February 18, 2019, from https://rewire.news/article/2017/03/03/texas-could-join-states-allowing-doctors-lie-pregnant-people/