Wrongful Birth

In a perfect world, every baby would be born healthy. Every pregnancy would progress normally, every delivery would be short, uncomplicated, and relatively easy. Every doctor would be prepared, properly trained, and fully supportive. Unfortunately, while those are standards that everyone should work toward, they are not always the case. Babies are born with health complications and health problems each year. In some instance, doctors fail to inform and prepare parents that an infant will be born with a severe abnormality. This is called a wrongful birth, a situation when a baby is born with a health condition, and it comes as a surprise to the parents.

What is the Difference Between a Birth Defect and a Birth Injury?

There is a big difference between a birth defect and a birth injury. A birth defect is health problem that a child was genetically predisposed with. A birth injury is a health condition that happens as a result of medical malpractice to a child that was going to be born normally with no health problems.

Birth defects can at times be considered a birth injury if medical negligence caused the defects. For example, several medications have been linked to an increased risk of birth defects. If a physician and/or manufacturer fails to inform the mother of the risks of birth defects when taking the medication while pregnant, they may be liable for damages.

Is a Wrongful Birth Considered a Birth Defect or a Birth Injury?

Wrongful birth cases are often complicated and intricate. You might think that a child born with a genetic disorder has a birth defect that otherwise couldn’t have been prevented.

However, a wrongful birth is considered a birth injury if, after prenatal testing, a physician failed warn the parents that the child would be born with a genetic disorder, and/or if they failed to screen and monitor the baby. Any time a parent is not informed by the doctor that a child will be born with a defect, this is generally considered wrongful birth.

For example, a recent case in Ohio indicates that a baby girl was born with Syndrome Z, a rare genetic disease marked by hypertension, heightened blood fats, and a resistance to insulin. Consequently, babies born with Syndrome Z may not develop correctly and may never learn to walk and talk.

After the mother underwent an amniocentisis, she was assured that her baby was not symptomatic, and therefore she went ahead with the pregnancy. The couple had planned an elective abortion early in the pregnancy should the test confirm the infant aqcuired Syndrome Z.

However, a representative presenting the test results over the phone gave the parents the wrong results. At 6 months of age, the baby could not crawl, sit up alone, or smile. After genetic testing, it was confirmed that the baby indeed had Syndrome Z. The responsible physician admitted to the commuincations mistakes after a wrongful birth lawsuit was filed.

What Should Doctors Do to Prevent an Infant’s Wrongful Birth?

There are a number of tests that need to be performed at various stages in a pregnancy that can detect any abnormalities in the baby. In some cases, the doctor may prescribe a number of supplements such as folic acid to keep the mother healthy and to prevent problems along the way. However, in wrongful birth cases, there is generally nothing that can be done to stop the abnormalities, such as Down syndrome or Syndrome Z.

Parents should always be informed and updated after each test so that everyone is aware of how the baby is doing and whether the baby is expected to be born with a defect.

Is  Wrongful Birth About a Larger Issue?

In addition to the aforementioned Ohio case, parents in several states have recently filed wrongful birth lawsuits because they claim they were not informed about their baby’s birth defect, because the doctor did not believe in abortion. These parents believe it should be the parents’ choice to abort the child if the child would simply be alive only to “suffer and die.”

Although these parents are advocates for being able to choose whether they want their baby to live a life full of disabilities or not, there are only 25 states that agree and allow plaintiffs to file these types of cases. The rest of the states do not honor wrongful birth lawsuits.

Other parents who don’t believe in abortion may refuse tests such as amniocentesis (a test that collects amniotic fluid to check proteins for birth defects such as down syndrome) because there is a risk –albeit small- of miscarriage. These parents will generally have to sign a form that take full responsibility for the wrongful birth if the child is born with birth defects.

The greater issue inherent in wrongful birth cases is that the parents want full disclosure of the status of their child so that they can be the ones to make the decision about whether to abort or not, and whether to take full responsibility for a child that will require expensive care and more than likely endure severe health problems and permanent disabilities.