In filing a wrongful birth lawsuit, the parents of a child who was born with severe congenital abnormalities accuse their doctor, usually an obstetrician, of failing to warn them about their child’s condition. Obstetricians, like all physicians, have a legal obligation to warn patients, including mothers, of any known risks involved in their pregnancy.

Wrongful birth lawsuits rest on the violation of this duty, when a doctor fails to disclose known risks or misdiagnoses a risk factor that would be crucial to a family’s decision-making process.  Wrongful birth claims remains controversial, in part because it brings up other controversial issues, including abortion.

How Parents Pursue Wrongful Birth Compensation

Some families claim in their complaints that the medical professional misdiagnosed their child prior to his or her birth. Others place the blame on genetic counselors who failed to properly evaluate the probability of a child developing abnormally inside the womb, claims that are especially common in cases when one or both of the child’s parents have a heritable genetic condition, one that can be passed on to their children.

Newborn Baby In Hospital

A small subset of claims involve misdiagnosed maternal infections, which can lead to severe and disabling disorders in infants if left untreated.

As a result of the medical professional’s negligence, parents usually argue, they were wrongfully deprived of the opportunity to consider terminating the pregnancy or conceiving in the first place. In most cases, parents will have to prove that, had they been fully-informed of their child’s condition, they would have chosen to terminate the pregnancy.

The Duty To Disclose Known Medical Risks

An element of malpractice is still required and, in this regard, wrongful birth lawsuits track the same requirements imposed on all birth injury lawsuits. In order to secure compensation, the family must prove, based on a “preponderance” (or majority) of the evidence, that the medical professional in question violated the standard of care that should have been followed under the circumstances.

This requirement can be satisfied in a number of ways. Foremost among the possibilities is the standard of care that obligates physicians to disclose the material risks of a procedure (defined broadly to include childbirth). In this context, parents will have to show that the doctor knew or should have known of their child’s congenital condition (or the distinct possibility that their child would develop the congenital condition), but failed to pass this information on to the family.

Other standards of care can also come into play, such as when a doctor’s failure to properly analyze test results leads to the misdiagnosis of a child’s condition.

Damages Available In A Wrongful Birth Suit

Most families claim that their child’s undisclosed or misdiagnosed medical condition has left them facing extraordinary medical expenses, extensive child care obligations and, in some cases, the inability to develop a healthy relationship with their child.

In civil law, we label these forms of harm as “damages.” Plaintiffs demand damages, in the form of financial awards, to compensate for the losses they have sustained due to the defendant’s negligence.

Medical & Long-Term Care Expenses

Successful birth injury lawsuits end in either jury verdicts or settlements intended to balance out the harm that a family has suffered due to malpractice. In considering damages, courts attempt to separate the normal or average costs of raising a healthy child from those expenses incurred as a direct result of a child’s severe congenital conditions.

The award in a birth injury lawsuit is designed to compensate families for the latter – the financial burden of adequately caring for a child with serious disabilities, over and above the costs of care that families with healthy children must bear.

Surgical procedures, ongoing health monitoring, specialist therapies and special education expenses all fit the bill. Diapers and formula don’t. Some states allow parents to claim damages for their own emotional suffering, while others do not.

Controversy & Final Considerations

Some parents understandably find the ideas behind a wrongful birth lawsuit distasteful. The lawsuits have also come under criticism from some members of the disability community, because, as Professor Wendy Hensel argued in the Harvard Law Review, the injury at issue is “the child’s life itself, with non-existence identified as the preferred alternative.”

Many states agree. Wrongful birth is only recognized as a legitimate cause of action in just over half of all states and the District of Columbia. Several states have passed laws that prohibit families from filing wrongful birth lawsuits, while other states, like Texas, have attempted to do so in recent years, but failed.

Wrongful Life & Pregnancy

Wrongful birth lawsuits are often confused with wrongful pregnancy and wrongful life lawsuits, though all of these legal actions grew historically from the same root. The first wrongful birth claims took the form of what, today, we would call a wrongful pregnancy. In these cases, the mother argues that, while she gave birth to a healthy child, the pregnancy was either unwanted or unexpected due to a physician’s negligence, such as a botched sterilization procedure.

Compared to a wrongful birth case, wrongful pregnancy sounds a lot closer to a traditional malpractice claim. It hasn’t been particularly persuasive to most courts, however. Courts generally regard cases claiming damages for healthy children with skepticism, in part reasoning that claims of this sort would result in emotional harm to the child.

Wrongful life lawsuits are another matter. Recognized in only three states, these cases are filed by children with disabilities (usually through a legal guardian) or adults with disabilities who argue that, but for the negligence of a medical professional, they would never have been born to suffer the effects of their condition. For obvious reasons, wrongful life lawsuits are even more controversial than wrongful birth claims.