A wrongful birth lawsuit is a subset of medical malpractice case brought by a parent who gave birth to a child with a disability. Like wrongful life cases, the disability is not one that occurred during labor and delivery, and is not one that was caused by a health care practitioner. Instead, the claim is that the parents would have legally terminated the pregnancy had they been properly informed about the fact and extent of the child’s injury.
Typical Wrongful Birth Claim
In the typical wrongful birth claim, the obstetrician, radiologist or genetic counselor made a mistake and either (1) failed to diagnose a child’s injury, (2) failed to properly report the child’s injury to other health care providers; or (3) failed to properly inform the parents of the child’s injury.
These lawsuits are usually filed following the birth of a child with holoprosencephaly, cystic fibrosis, Down Syndrome, or spina bifida. These conditions or injuries are often detectable by ultrasound/sonogram or by some sort of lab test (like a blood test or amniocentesis). The lab technician, radiologist or ultrasound operator should observe the child’s condition and inform the obstetrician, who must notify the parents. When told, the parents can decide whether they want to continue on with the pregnancy or terminate through a lawful abortion.
Pursuing a Wrongful Birth Lawsuit
A wrongful birth lawsuit is always brought by the parents of the injured child, claiming that they would have legally terminated the pregnancy had they known about the child’s condition. About half of the states have accepted these types of claims, though not all states have faced the issue.
For those states that do permit wrongful birth claims, the amount of the recovery varies. Some states permit parents to recover the cost of extraordinary medical expenses caused by the child’s disability while the child is dependent on the parents. Other states only allow for recovery of medical expenses during the child’s minority (usually age 18). Some states also permit recovery of the parents’ emotional distress damages.
If your child was born with a congenital disability or genetic disease, contact our birth injury malpractice lawyers at (440) 252-4399 or send us an online message. We can help you determine if your state recognizes wrongful birth or wrongful life claims, and whether you and your child have any legal recourse.