A wrongful birth lawsuit is a type of medical malpractice lawsuit in which the parent or parents of a child with a birth defect (typically not caused by the health care provider) sue the health care provider for:
- providing negligent genetic counseling concerning the likelihood that the mother’s pregnancy would result in a child with a birth defect,
- failing to diagnose the birth defect prior to birth, or
- failing to inform the parents of the existence of a known or suspected birth defect.
The reasoning behind a wrongful birth lawsuit is that if the health care provider (a doctor, hospital, etc.) had informed the parents of the birth defect in advance, the parents would have terminated the pregnancy and spared themselves the burden of caring for a child with a birth defect. This type of lawsuit is understandably controversial — only about half of all states (including Florida and New Jersey, for example) allow wrongful birth lawsuits. To win such a lawsuit, the parents must prove the following four elements.
The existence of a doctor – patient relationship with respect to the pregnancy
The parents must prove that the health care provider was subject to a duty of care with respect to the pregnancy at issue. This is ordinarily established by proving that a doctor-patient relationship existed with respect to the pregnancy. Medical records of counseling, testing, appointments, etc. can generally establish the existence of a doctor-patient relationship.
Breach of duty on the part of the health care provider
The parents must prove that the health care provider breached his duty of care toward the patient. This can be difficult to prove – the parents may need to call expert medical witnesses to testify that a doctor of ordinary skill would have, for example, performed a test for a certain birth defect that the defendant health care provider neglected to perform. A determination that the health care provider breached a duty of care is highly circumstantial and depends heavily on the specific facts of each individual case.
To establish causation, the parents must prove that if they had known of the birth defect (or if they had been informed of the full extent of its seriousness), they would have legally terminated the pregnancy. If the parents would not have terminated the pregnancy in any event, they have no case against the health care provider even if the failure to inform the parents of the birth defect did constitute negligence.
Different states apply different measures of damages. Some states will award the parents the amount necessary to compensate them for the extraordinary medical expenses that arise from the birth defect itself (ordinary child care expenses are excluded), during the entire time that the child is financially dependent on the parents. Other states award the same expenses, but only until the child turns 18, regardless of whether the child remains dependent on the parents after the age of 18. Some states award the parents damages for emotional distress, while other states do not.
Not to be Confused with a “Wrongful Life” Lawsuit
A wrongful birth lawsuit is not the same as a “wrongful life” lawsuit. In a wrongful life lawsuit, it is the child who sues the health care provider, alleging that his parents would have terminated the pregnancy if not for the health care provider’s failure to properly diagnose the birth defect, and that the plaintiff never would have been born (and thus would not have had to suffer) if it weren’t for the health care provider’s negligence. Wrongful life lawsuits are quite rare.