A wrongful birth lawsuit is a subset of medical malpractice case which is brought by a mother who gave birth to a child with a disease or disability.
Alike the wrongful life cases, the disability isn’t the one that occurred during labor and delivery and also isn’t the one that was caused by a health care practitioner. Instead, the claim is that the parents would have legally terminated the pregnancy in case they been properly informed about the extent of the child’s injury.
In wrongful birth lawsuits, parents of a child born with a birth defect or disease can sue the either the hospital or the healthcare professional in case the genetic testing wasn’t done, was done improperly, or was misread. Parents also can bring a claim in situations where negligent genetic counseling misled them regarding the chances of a fetus developing abnormally or when either the sonogram or an ultrasound was misread entirely.
Essential Factual Elements of Wrongful Birth
According to CACI 512 to establish this claim of a wrongful birth, the plaintiff must be able to establish the following elements:
- The defendant negligently failed to diagnose or warn the plaintiff of the risk that the child would be born with a genetic impairment or disability
- The defendant negligently failed to perform appropriate tests or advise tests to the plaintiff that would more likely than not have disclosed the risk that the child would be born with a genetic impairment or disability
- The child was born with a genetic impairment or disability
- The plaintiff had known of the genetic impairment or disability; the mother would not have conceived the child or would not have carried the fetus to term
- The defendant’s negligence was a substantial factor in causing the plaintiff to have to pay extraordinary expenses to care for the child
When Are the Lawsuits of Wrongful Birth Filled?
Usually the lawsuits are filed following the birth of a child with Down Syndrome, cystic fibrosis, holoprosencephaly, or spina bifida. These injuries are often detectable by sonogram and ultrasound or by some sort of lab test. The lab technician, ultrasound operator or radiologist must observe the child’s condition and inform the obstetrician, who is obliged to notify the parents. After that the parents can decide whether they want to continue on with the pregnancy or terminate it through a legal abortion.
Damages That Can Be Won in Wrongful Birth Cases
In wrongful birth cases, parents can be entitled to a financial compensation to cover items such as:
- Medical costs of caring for a child with a serious birth defect or disease
- Costs of tuition for special schools for children with different disabilities.
- Emotional distress experienced the parents in living with the child’s birth defect or disease
This financial compensation is not aimed to cover the costs related to the raising of a child, instead it will only cover the costs that are specific to child born with a birth defect or disease.