Most birth injury lawsuits arise from medical malpractice before, during, or after childbirth. In contrast, wrongful birth cases tend to be based on birth defects that could not have been prevented with competent care by a doctor. A wrongful birth claim alleges that a doctor failed to tell the parents about a birth defect in their baby before birth, or about a risk of a birth defect in a potential pregnancy. As a result, the parents were forced to bear the heavy financial burdens of caring for a child with permanent disabilities for which they were not prepared. If they had known about the birth defect or the risk of a birth defect, they would have been able to choose whether to avoid or terminate the pregnancy.
Wrongful Birth Is Controversial
Some states that take more conservative positions on reproductive rights do not allow wrongful birth cases.
In addition to diagnosing and treating patients, health care providers must communicate candidly with them so that they can make informed decisions. This includes telling patients about the risks and possible complications associated with health conditions, including pregnancy. A doctor may be liable for wrongful birth when they do not inform parents about genetic conditions or other birth defects about which a competent doctor would have informed them. Liability for wrongful birth also may arise when a doctor fails to conduct screening tests during pregnancy, fails to interpret them properly, or provides misleading information.
Screening and Testing Failures During or Before Pregnancy
Well before a child is born, and even before the later stages of pregnancy, doctors monitoring an expectant mother should perform screening tests to identify possible birth defects and other serious issues. In some cases, a woman who is considering starting a family may ask a doctor about risk factors such as genetic conditions that could affect her child. Doctors can screen for these factors before pregnancy as well. Initial tests may include ultrasound imaging and blood tests. For example, a doctor may screen maternal serum to determine whether a baby may suffer from Down syndrome or another birth defect related to a chromosome condition.
A doctor also should follow up on any indication that a fetus may suffer from a birth defect. They may conduct more advanced ultrasounds or an amniocentesis. This technique involves analyzing fluid from the amniotic sac around the baby. In addition to indicating the presence of infections, amniocentesis can reveal chromosomal abnormalities. These abnormalities also may emerge from sampling the chorionic villus, which is a type of tissue in the placenta.
Compensation in Wrongful Birth Claims
Permanent disabilities resulting from birth defects can lead to substantial ongoing costs, such as surgeries, therapy, tests, doctors’ appointments, medications, and assistive devices. A family also may need to remodel certain areas of their home to accommodate a disability in their child. If they were not properly informed about the risk of a birth defect, parents can seek compensation for all of these damages from a doctor who was at fault. To prove liability, they would need to show that the doctor violated the professional standard of care. This consists of the practices that a competent doctor in the same field would have followed.
The Role of Experts
Experts who are familiar with the field will need to explain the standard of care, identify deviations from it, and describe how those deviations caused the damages sought in a claim.
As with other medical malpractice claims, wrongful birth lawsuits must be brought within a statute of limitations. This restricts the time period for filing a case. Even if a doctor appears to have clearly violated the standard of care, parents likely cannot recover damages if they file their claim after the statute of limitations expires. Thus, they should set up free consultations with birth injury lawyers in their area to assess whether they have a viable claim and discuss the compensation that they might be able to recover.