In April 2021, the Kansas Supreme Court ruled that the plaintiffs could not recover damages from a doctor because they weren’t told about serious fetal defects until it was too late to decide to terminate the pregnancy.
In this particular case, a baby was born with a brain abnormality that resulted in severe defects and disabilities. She is permanently disabled and unable to perform activities of daily living. The parents said they would have chosen to terminate the pregnancy had they known about her condition.
According to AP News, Kansas Attorney General Derek Schmidt said, "[t]he birth of a child should be cause for celebration, not for the law to award damages because the child was 'wrongfully' born.”
However, Justice Eric Rosen dissented and said, “I believe that recognizing the injury in cases like the one alleged here simply ensures that patients receive competent medical care or compensation for damages if they do not.”
What is a wrongful birth or life claim?
You might know that a wrongful death lawsuit is filed on behalf of a person who died because of someone else’s negligence.
But how can someone wrongly cause a life?
There are 3 types of lawsuits involving this concept: wrongful birth, wrongful life, and wrongful pregnancy.
Wrongful birth lawsuits
A wrongful birth lawsuit is filed by the parents of a baby born with severe medical problems. They could sue their doctor or hospital for misdiagnosing the baby’s condition in utero or for failing to provide adequate genetic counseling that the baby might develop abnormally in the womb. As a result, the baby was born with birth defects that require significant medical treatment and could result in life-long difficulties.
The Hoffmans claimed that their doctor never performed genetic testing for the disease, and Jake was diagnosed at about 6 months old. He had no muscle control, suffered constant seizures, and died at 2 years old.
Sharon says she would have had an abortion if she knew that Jake had Tay-Sachs. Jewish parents are usually given a pre-pregnancy or early pregnancy blood test screening to determine whether they carry the gene for Tay-Sachs. If Sharon and Steven had known that either or both of them had the gene, they could have had more genetic testing on the fetus in early pregnancy to determine whether the fetus also had the gene.
The Hoffmans sued their doctor for wrongful birth and reached a settlement. (source)
Wrongful life lawsuits
A wrongful life lawsuit is filed by the “baby” who developed severe defects as a result of an incorrect or incomplete diagnosis. Wrongful life claims are permitted only in California, New Jersey, and Washington.
Yesenia became pregnant with her third daughter, Sandra, who was born with a brain malfunction. Sandra must take medicine twice a day to control seizures. She will require assistance and care for her lifetime. Yesenia and her partner, Luis Lemus, who was also the father of her older daughters, were trying to prevent another pregnancy in order to provide financially for their current family before she became pregnant with Sandra.
The judge ruled that Yesenia would not have become pregnant if the nurse had given her the birth control she expected rather than the accidental flu shot. The family was awarded $7.5 million for Sandra’s medical bills and other expenses, as well as $2.5 million for the family’s emotional distress.
In both a wrongful birth and wrongful life lawsuit, the plaintiff must prove that the parents would have chosen not to conceive the child or to terminate the pregnancy if they were aware of the genetic problems or disability.
Wrongful pregnancy lawsuits
There’s also a third category of wrongful pregnancy lawsuits, which is slightly different from the others. This is when a parent has undergone a sterilization procedure, or has been told by their doctor that they are not able to conceive a child, and conceives a child while believing it would not be possible.
However, Burns did, in fact, become pregnant. In addition, her physician failed to diagnose her pregnancy during an exam performed in her second trimester. She learned she was pregnant around 20 or 21 weeks gestation during an exam by a different physician. She subsequently gave birth to a healthy child.
Burns sued for the costs associated with raising a child to age 18, when she hadn’t intended to do so. The Connecticut Supreme Court ruled that she could be awarded expenses for raising her child based on the doctor’s negligent advice regarding her ability to become pregnant and failing to diagnose the pregnancy earlier.
Medical malpractice claims for wrongful births
A wrongful birth claim would be part of medical malpractice law, which is part of personal injury.
All personal injury law is based on negligence. Negligence is when a defendant’s action or failure to act causes someone’s injury.
There are 5 elements necessary to prove negligence:
- The defendant had a duty to either act or not act in a specific way.
- The defendant breached their duty.
- Breach of that duty was the cause of the plaintiff’s injury.
- The defendant should have foreseen the likelihood that someone would be harmed by their action or inaction.
- The injury resulted in actual damages (cost of medical treatment, lost wages, pain and suffering, etc.).
Civil claims for wrongful birth and wrongful life
You can recover monetary damages for a doctor’s negligence that results in the unwanted birth of a child.
A wrongful birth claim can arise when:
- A person becomes pregnant because of the doctor’s negligence in performing a sterilization procedure
- A doctor fails to diagnose a pregnancy
- A doctor fails to inform a parent that the child might be born with significant problems in enough time for them to decide to terminate the pregnancy
Medical malpractice has an additional set of elements (in addition to negligence)—namely:
A medical professional’s standard of care is the reasonable approach, practice, or procedure for a particular medical situation.
Reasonableness is determined by what’s common and accepted in the local medical community. That means the standard of care might be different depending on where the treatment was provided. A physician or other medical professional has breached the standard of care if they failed to provide treatment consistent with the local standard.
In addition to breaching the standard of care, an injured plaintiff can make a claim that:
- The provider didn’t use their best judgment in determining treatment or care.
- The provider failed to use reasonable care and diligence to apply their knowledge and skill to the patient’s treatment.
Types of claims in a wrongful birth lawsuit
- Failure to diagnose: The doctor did not diagnose a medical problem with a fetus.
- Failure to warn: The doctor did not warn the parent of the risk of either conceiving or giving birth to a child with a particular condition or genetic predisposition, or based on the mother’s condition or health history.
- Denial of informed decision-making: The doctor failed to permit the parents to make an educated choice about terminating the pregnancy by withholding information necessary for the parents to decide.
Birth injuries vs. birth defects
Most medical malpractice cases related to births are for birth injuries, which is what happens when the baby or parent is injured during the process or pregnancy or birth.
A birth injury is different from a birth defect. A birth injury might be something like failure to perform an emergency C-section, failure to detect fetal distress, incorrect medication or dosage to the mother during pregnancy or labor, or accidents that happen during physical delivery like pulling or twisting the infant.
A birth defect is a problem that results from your child’s DNA — or genetics. Neither a parent nor a doctor can prevent a genetic defect, but many can be diagnosed and treated before birth.
Some birth defects are detected early in pregnancy through ultrasound, blood testing, and other routine diagnostics. If your doctor suspects that there might be a problem, they will likely order additional testing.
There are 3 reasons why this type of prenatal testing is important.
- If a defect is discovered early enough, you might have the option to terminate the pregnancy.
- Some birth defects can be treated or corrected prior to birth.
- If you and your doctor are aware of the baby’s condition, you can be prepared for immediate treatment when the baby is born, and for ongoing care and support if necessary.
Damages for a wrongful birth claim
If you believe that you have a claim for wrongful birth, you might be able to recover damages to cover the cost of your related expenses.
In general, personal injury law is designed to make a plaintiff “whole” or to restore them to the financial condition they’d be in had the injury never happened.
In a wrongful pregnancy case, it’s a little different. You might seek to recover expenses associated with raising a child.
In a wrongful birth case, your lawyer might seek to claim damages for the difference between the cost of raising a healthy child and raising a child with a disability, or one who has more medical requirements and treatment than the average.
Costs could include the following damages, along with other related expenses:
- Past, present, and future medical treatment
- Education or special schools for a child with different needs
- Assistance with the activities of daily living
- Financial assistance if the parent can’t work outside the home because of the child’s level of needs
- Modifications to the home or vehicle to accommodate a wheelchair or other equipment
- Pain and suffering or emotional distress, both for the child and the parents