Wrongful Birth: Protecting the Rights of Parents and Their Children
Wrongful birth is a medical malpractice claim brought by the parents of a child born with birth defects, alleging that negligent treatment or advice deprived them of the opportunity to avoid conception or terminate the pregnancy.
In a wrongful birth action, parents seek damages for a child born with birth defects. The claim for damages is based on the cost to parents of raising an unexpectedly defective child. In some states, the child brings a “wrongful life action,” against the physician(s), where the child seeks damages for being born with a birth defect rather than not being born.
A wrongful birth claim may include assertions that the physician(s):
- Didn’t properly diagnose a serious medical problem with an unborn fetus, or
- Didn’t properly warn the parent of the risk of conceiving or giving birth to a child with a serious medical problem, or
- Deprived the parent of making an informed decision about whether to terminate the pregnancy because of a serious medical problem with the fetus (these last two usually are closely related)
In these cases, the parent must prove:
- There was a doctor-patient relationship whereby the doctor was relied upon for prenatal medical advice or treatment.
- The doctor fell short in his/her responsibilities or “breached his duty”. This includes misdiagnosing a serious medical problem or by not properly warning the parent about the problems and the risks involved with having a child with a serious medical problem. (For example, a doctor may breach his duty by not explaining to his pregnant patient the various prenatal screenings and tests available to determine if her fetus is at risk of having serious birth defects.)
- The parent suffered some type of harm or injury. Typically, the harm claimed by a parent is the fact that she has a child with a serious birth defect or medical condition. Sometimes it’s enough for the parent to claim she was harmed by not being given the chance to make an informed, intelligent decision about whether or not to terminate the pregnancy.
- Finally, the parent must prove that the doctor’s mistake caused the parent’s injury or harm. Generally, this is a claim that the parent would have chosen to abort the fetus if the doctor didn’t misdiagnose or fail to detect the birth defect, or didn’t fail to inform the parent of the risks involved with giving birth to a child with a serious defect.
We support our clients’ wrongful birth claims by finding expert witnesses such as physicians to testify that the parent’s doctor was negligent and that another competent and reasonable physician in the same or similar circumstances would have done something differently, such as ordering a specific genetic test. We also understand the sensitive nature of these types of cases and are here to support the emotional needs of our clients and their family members.
If you believe that you have a wrongful birth claim, or if you have a medical malpractice question of any type, please contact or attorneys toll-free at 866-732-6700 or complete the contact form on our website. We’re here to help.