Medical Malpractice
Wrongful birth is a very unique type of medical malpractice case in which parents of a child born with a genetic defect (e.g., Downs syndrome) sue their prenatal doctors for failing to diagnose and inform them of the defect. Wrongful birth lawsuits are based on the central premise that the parents would have aborted the pregnancy if doctors had warned them of the genetic defect in time.
What is a Wrongful-Birth Lawsuit?
A wrongful-birth case is a medical malpractice lawsuit filed by the parents of a children born with some type of congenital birth defect or genetic disorder that doctors failed to identify during prenatal care and screening. The parents essentially sue the doctors for negligently failing to identify the genetic defect and give the parents an opportunity to terminate the pregnancy. The parents in a wrongful-birth case assert that if they had known about the birth defect they would have aborted the pregnancy. Wrongful-birth cases seek damages for the costs of caring for a disabled based on the theory that if the doctors had identified the defect they would have terminated the pregnancy and avoided these costs. Plaintiffs in wrongful-birth cases are effectively claiming that they would have had an abortion if they defendants had not been negligent in their prenatal screening.
Recognition of Wrongful-Birth Claims in Maryland
A total of 26 states (including Maryland) have expressly recognized a cause of action for wrongful-birth. However, 6 states have affirmatively rejected wrongful-birth claims and do not recognized wrongful birth as a valid cause of action. Maryland first recognized a cause of action for wrongful-birth in 1993 in the case of Reed v. Campagnolo, 332 Md. 226 (1993). In Reed the plaintiffs alleged that their prenatal care doctors never performed AFP testing for birth defects such as spina bifida or advised them that such testing was available. Their baby was eventually born with numerous severe defects and deformities and the plaintiff’s contended that they would have chosen an abortion if the AFP testing would have revealed the defects. The Reeds brought their case in Federal Court a certified question of law was submitted to the Maryland Court of Appeals which confirmed that Maryland would recognize a cause of action for wrongful birth.
Elements of Wrongful Birth Claims
The elements necessary to establish a cause of action for wrongful birth are essentially the same as the elements required for any other medical malpractice claim:
- Doctor-Patient Relationship: to bring a wrongful birth claim, the plaintiffs must first establish that doctor-patient relationship existed between themselves and the defendant(s). Of course, wrongful birth claims are not limited to doctors but can be brought against other health care providers. Medical laboratories and testing companies like LabCorp or Quest Diagnostics are frequent defendants in wrongful birth cases. Lab companies typically get sued for wrongful birth when they botch blood work or screening tests that would have identified genetic defects during pregnancy.
- Medical Negligence: doctors or medical labs will only be liable for wrongful birth if the plaintiffs can show that the failure to identify a genetic defect or condition was a breach of the standard of medical care. In other words, plaintiffs need to prove that the doctor or lab made some type of mistake; departed from ordinary medical protocol; or failed to provided substandard medical care. Medical negligence in wrongful birth cases typically falls into one of several categories: (i) doctors fail to offer or fail to perform standard testing that would have revealed a genetic defect; (ii) doctors fail to recommend non-standard testing in response to symptoms or indications during pregnancy; or (iii) medical lab botches testing and gives false negative results. Proving this element requires expert testimony and opinion.
- Causation: causation in wrongful birth cases can be an emotionally charged and controversial element. To prove causation in a wrongful birth case, plaintiffs must show that they would have aborted the pregnancy if they had been told about the baby’s birth defect in advance. This proof generally comes in the form of testimony from the parents.
Damages for Wrongful Birth
When parents bring a successful wrongful birth claim they are generally entitled to recover damages for the additional costs and expenses associated with raising their disabled child. In the Reed case, the Court of Appeals suggested (in dicta) that damages for wrongful birth claims in Maryland might be limited in 2 ways. First, parents can only recover “extraordinary” costs resulting from raising a child with birth defects. They are not permitted to recover all costs associated with raising a normal child.
The Reed decision also suggested that damages might be limited to expenses incurred before the child turns 18. In other types of malpractice cases, parents can only recover the costs of their child’s medical expenses up the age of majority. The idea behind this rule is that once the child reaches the age of majority, the parents are no longer responsible for his or her medical expenses.
However, the U.S. District Court for the District of Maryland has rejected this limitation and held that parents can recover post-majority damages in a wrongful birth case. In Wilkie v. Aslam, U.S. Dist. LEXIS 97503 (D. Md. 2009), the court explained that the restriction on post-majority damages is not applicable when the child is incapacitated and parents remain legally responsible for them. As explained in the Wilkie decision, Maryland law imposes legal obligations on parents to provide for children who are incapacitated and cannot earn a living. This obligation is set forth in Maryland’s Family Law Article: Md. Code Ann., Fam. Law § 13-102.
Settlements & Verdicts for Wrongful Birth
Below are summaries of reported settlements and jury verdicts in wrongful birth cases. These are provided for informational purposes only.
- Plaintiff v. Defendant Medical Group (California 2018) $1.75 million: Plaintiff parents sued defendant prenatal care group alleging that doctors negligently failed to properly interpret genetic fetal screening, resulting in their loss of an opportunity to abort the pregnancy. The baby was eventually born with Down syndrome and parents sought damages for additional costs of care. The defendants contended that the screening tests were properly evaluated. The case went to mediation was settled for $1.75 million.
- Alvarez v. United States (New Jersey 2018) $4 million: Plaintiff sued a federally funded clinic claiming that they negligently did her 2nd trimester ultrasound screening a month too early and neglected to perform another one later on. As a result doctors failed to discover that the baby suffered from severe hydrocephalia until it was too late to safely abort the pregnancy. The baby was eventually born with major brain damage. In defense the doctors claimed that they did advise the mother to come back for another ultrasound but she ignored that advice. A jury in Federal Court in Newark awarded plaintiff
$4 million. - Plaintiff v. Children’s Hospital (California 2017) $10 million: Plaintiff’s first child had been born with Duchenne muscular dystrophy (DMD), so prior to getting pregnant again she had genetic testing done to determine if she was a DMD carrier. The hospital and doctors incorrectly told plaintiff that the results of testing were negative, when in fact the test results were positive. Based on the false negative results plaintiff got pregnant again and her child was eventually diagnosed with DMD. She sued the hospital and doctors for wrongful birth and the case eventually settled for $10 million.
Contact Miller & Zois About Wrongful Birth Claims
If your doctors or a medical lab failed to diagnose and inform you that your baby might have a genetic defect, you may have a claim for wrongful birth. The lawyers at Miller & Zois can help you investigate your potential claim and sue the responsible parties. Get a free online consultation or call us today at 800-553-8082.