What Is Wrongful Birth?
A wrongful birth claim is when a parent sues a healthcare professional for the emotional distress associated with having a child with severe defects that, had they been properly advised, they would have chosen to terminate their pregnancy. The key to wrongful birth claims is that the healthcare professional deprived the parents of information that would have resulted in their decision to terminate the pregnancy rather than give birth.
When a fetus is discovered to have profound genetic or congenital defects through prenatal tests, parents have the right to a decision: terminate the pregnancy or continue it. In some situations, screening tests that could have detected the birth defect were not offered or interpreted improperly. In others, the doctor fails to diagnose a genetic condition or notify the parents about test results that show a birth defect or the increased risk of having a child with that condition (marker), which could then be further analyzed and confirmed. When these incidents of medical negligence occur, New Jersey law recognizes that parents have the right to a medical malpractice wrongful birth lawsuit.
At Britcher, Leone & Sergio, LLC, we know that raising a child with severe disabilities carries with it a lifetime of emotional and financial burdens for the family. As lawyers that handle wrongful birth cases, we believe the parents of babies who are born after a doctor failed to diagnose or disclose such a serious condition need knowledgeable and sympathetic lawyers to handle a successful wrongful birth claim.
What is Wrongful Life?
A wrongful life claim is a lawsuit for a child born with severe defects, brought by a parent or guardian on the child’s behalf. The wrongful life lawsuit is for financial compensation for the child’s medical care, special education, and other special needs their disabilities require. Like a wrongful birth claim, the malpractice claim is based on the medical provider’s negligence that deprived the parents of the opportunity to decide to terminate the pregnancy. As a result of the medical provider’s negligence, the family will be burdened by extremely high lifetime medical costs, as well as expenses for special education and life care needs.
What Are The Differences Between Wrongful Birth and Wrongful Life?
Simply put, these are the differences between wrongful birth and wrongful life:a wrongful birth claim is the parents’ claim for emotional distress and the wrongful life claim is the claim for the child’s extraordinary medical expenses. To recap, a wrongful birth claim is a medical malpractice lawsuit claiming medical negligence by the doctor that deprived the parents of the opportunity to decide to terminate the pregnancy. This is a suit brought by parents of a child with a disability or disease, for the emotional distress caused by the wrongful birth. A wrongful life claim is brought on behalf the child for the child’s increased costs for medical care and therapy the child will need to live.
In both these cases, the parents must prove the physician deprived the parents of the opportunity to decide whether to terminate. That interference comes in the form of neglecting to run prenatal tests to screen for congenital or genetic diseases or conditions, failure to diagnose a birth defect or genetic condition, or improper interpretation of lab or other test results. The outcome may be the negligent birth of a special needs child.
Some causes of wrongful birth and wrongful life are:
- The obstetrician failed to notify the parents of the finding of a congenital disease.
- The radiologist failed to diagnose a severe physical disability on prenatal ultrasounds.
- Appropriate genetic testing was not done, which allowed known a serious genetic condition to go undiagnosed until birth.
- Markers of potential genetic conditions are not followed up or advised about
The State of New Jersey recognizes both parents’ wrongful birth and the child’s wrongful life claims.
What Makes a Successful Wrongful Birth Case?
Wrongful birth cases are complicated and require expertise in these matters.
Litigating a successful wrongful birth case involves proving that there was an existing patient/doctor relationship, that the physician did not uphold the duty of care owed to you as the patient, and that this failure led to injury, loss, or harm that resulted in damages.
Breach of medical duty in wrongful birth lawsuits
Failures on the part of the medical provider that led to the wrongful birth take on many forms. These breaches of medical duty include failure to:
- Explain informed consent and/or all legal medical options available to the parents
- Order correct screening or diagnostic tests and/or read those tests incorrectly
- Diagnose a genetic condition
- Take a proper medical history
- Explain potential risks to the baby
Contacting an Experienced Birth Injury Attorney
The birth injury lawyers at Britcher, Leone & Sergio, LLC understand the difficulties associated with raising a child with birth defects or a birth injury. As a law firm specializing in birth injuries and medical malpractice—including wrongful birth and wrongful life claims—our attorneys have helped many families after a doctor fails to diagnose an issue. Contact our firm to learn about your rights and speak to a legal team that will treat you with respect and the dignity you deserve.