Wrongful birth is a legal claim that, due to the birth of a child, the parents are worse off financially and emotionally. It occurs in a variety of circumstances:
- The health care provider of a disabled child's parents fails to properly inform the parents of the risk of having a child with the disability in question
- Health care providers do not perform birth control or sterilization procedures properly
- Health care providers do not properly terminate a pregnancy
What Is Wrongful Life?
Wrongful life, by contrast, is a lawsuit brought by a disabled child for damages associated with the pain and suffering of living with a disability. This type of action is rarely ever accepted, since many courts assume that being alive is far better than being dead.
What Is Wrongful Pregnancy?
Parents can also bring a claim for wrongful pregnancy if they tried to prevent or avoid pregnancy either through sterilization such as through a hysterectomy, pregnancy testing, abortion and believed that this procedure was done, but due to the negligence of the doctor or medical staff the methods failed.
In a wrongful pregnancy claim, the parents can sue even if the baby is born healthy if the harm that was caused was by the unwanted pregnancy and birth. The types of damages in wrongful pregnancy cases vary from state to state, but most states allow parents to recover costs such as medical expenses, lost wages, pain and suffering. Very few states allow parents to recover for the expenses incurred for raising the unwanted child.
What Proof Is Required for a Wrongful Birth Claim When the Child Is Disabled?
In the case of a failure to properly inform of the risks a child will be born with a disability, the parents must prove that the health care provider failed to properly inform them of risks of the disability or the possibility that the child would be born with a disability. This failure may result from something as simple as the doctor misreading an ultrasound or failing to diagnose any potential problems. The parents must also prove that, had they known the risk, they would have terminated the pregnancy, or perhaps avoided conception altogether.
What Damages Are Available in Wrongful Birth Claims?
Wrongful birth can have a variety of consequences resulting from the emotional, physical, and financial strain on the parents of a disabled child. The damages allowed are usually the increased costs associated with caring for this child, as well as emotional distress resulting from having to raise the child.
Should I Consult an Attorney?
The laws governing wrongful birth will vary from state to state. Some states allow such claims, and others do not. If you feel that you may have a claim for wrongful birth, a malpractice attorney can help determine whether or not your have a valid claim.