The birth of a baby is supposed to be a joyous event. In the months leading up to the due date, the mother gets all the tests recommended by her doctor. Nothing shows up as a potential problem -- until the birth, when the child is discovered to have birth defects that weren't detected in utero. Do the parents have a medical malpractice case?
The Doctor's Responsibility
In most medical malpractice cases involving what's called "wrongful birth," parents sue because of:
- Incorrect results on genetic tests.
- Failure to identify health issues during pregnancy.
If either of these issues could be the fault of the doctor or other medical professionals and there is harm in the case of a child with birth defects, then the parents do have a legitimate case. Some examples include:
- A Florida couple whose son was born with no arms and one leg were awarded $4.5 million.
- Oregon parents were awarded almost $3 million after their child was born with Down Syndrome, even though genetic tests said the child did not have any chromosomal abnormalities.
The argument is that the parents should have been informed about the physical or mental issue with the fetus so that there would be time to decide whether to terminate the pregnancy. The challenge is to prove that the doctor or other medical professionals, such as the people who conducted an ultrasound or analyzed genetic testing results, did not meet the standards that another, average doctor would have.
When a Lawsuit Isn't an Option
Most states do allow for these wrongful birth lawsuits, but some states have or are considering bills that would limit damages or make it impossible to sue.
As well, it must be the parents who file the lawsuit. The child is not able to sue, nor are other family members.
In most cases, the parents can sue for the cost of providing medical treatment for their child with birth defects. Future care, therapy and educational costs can also be part of a lawsuit.
Some states also permit damages to include emotional pain and suffering, as well as costs to the parents such as time off work to care for the child.
If your child was born with physical or mental birth defects that were not diagnosed before birth and you believe that they should have been discovered during traditional prenatal testing, then you may have a case. Talk to a personal injury or malpractice attorney like Dunnigan & Messier P.C. about your options.