What would you do if you had become pregnant but you discovered that your baby would have a mental disorder or seriously debilitating genetic disease? Would you want to terminate the pregnancy? Even if you ultimately decide not to terminate the pregnancy, wouldn’t you want to be fully informed so you could make that decision? Where the baby has a serious health-related issue, the parents can sue for wrongful birth if the doctor did not inform them of the serious health condition prior to the baby’s birth, assuming that the condition was able to be detected while the child was still in the womb.
A wrongful birth lawsuit is one where the parents sue because they were not given a real opportunity to avoid conception or to terminate the pregnancy. The child was likely born with defects that the family was unaware of prior to the birth. The lawsuit would allege that either negligent treatment or advice took away the opportunity to terminate the pregnancy.
Wrongful birth could be caused by a number of mistakes, including failure for a healthcare provide to:
- Withhold information from the parents that the child was likely to have a serious medical condition
- Failure discover that the child would likely have a serious medical problem when he or she should have known and shared this information
- Failure to diagnose a medical condition properly
- Medical care and treatment
- Child care expenses
- Emotional stress related to raising and caring for the child
Breach of Duty
Wrongful birth is a medical malpractice claim, so the patient needs to prove the basic elements of a medical malpractice claim. First, the doctor must have had a duty to the patient. As a rule, the doctor will have this duty whenever there is a doctor-patient relationship between the two parties. The mother’s medical record should indicate that the doctor gave her advice or treatment prior to the child’s birth.
The patient should also prove that the doctor breached his or her duty to the patient. In wrongful birth cases, this means that the patient must show that that the doctor did not warn the mother of the potential for having a child with a serious medical condition. The parent must then show that they were harmed by this breach of duty. Generally, the birth defect will be expensive to treat. In Illinois, the court will also consider the emotional harm inflicted on the family.
It must be proven that due to breach of duty, actual harm was caused. This is sometimes the most difficult part of a wrongful birth lawsuit for parents. This is because those victimized must prove that they would have aborted the baby had they known that the child would have a serious medical condition. It is difficult to admit this information for some people, but the patient needs to show that if they would have had the information, then virtually none of their damages would have occurred.
These suits can get complicated, partly because of the medical information that is involved in this type of case. General practices and procedures must be discussed and explained to the jury. Expert witnesses like doctors and other experienced medical professionals may be involved as well.
If the parents succeed in a wrongful birth suit, they could collect damages for:
Distinguishing Wrongful Birth from Other Types of Actions
Wrongful birth is conceptually similar to a wrongful life action. A wrongful life action means that the child is seeking damages for being born with a defect (instead of the parents seeking damages for being born). Wrongful birth is also similar to wrongful pregnancy, but not quite the same thing. Wrongful pregnancy assumes that the parents’ method of contraception failed or that an abortion failed, resulting in the birth of a child.
If your family may have a wrongful birth claim, contact a Chicago birth injury attorney who can explain your legal options. Call Staver Accident Injury Lawyers, P.C. at (312) 236-2900 for a free consultation.