Prenatal diagnosis (PD) has become more and more routine in obstetric practice over the last decade.

PD is designed to detect potential fetal defects and provide mothers with information which may be used to make an informed decision about terminating their pregnancy. If prenatal diagnosis fails to detect severe defects, mothers may resort to making a wrongful birth claim against the physician for giving birth to an unwanted, disabled child if it could have been avoided.

Evolution of Wrongful Birth Claims

Wrongful birth claims first became more prominent when unintended births occurred as a result of alleged failures in sterilization or contraception methods. Claims were for the medical costs of pregnancy and childbirth, the cost of rearing the child and the pain and suffering involved.

As abortion laws changed, women gained more control over their own pregnancies and also gained the right to terminate them in the event that a fetus was discovered to be malformed. PD developed as a tool to discover a number of fetal malformations, which in turn meant that there was an increase in legal actions when these tests failed to be performed correctly, when the results of tests were interpreted incorrectly, or when parents were not informed promptly after tests were analyzed.

Wrongful Death Claims in Case Law

One of the first cases that established a precedent in law was a decision made in 1975 by the Court of Texas. This was a wrongful birth claim made by parents whose child developed rubella during the first month of pregnancy and as a result was born with defects. The parents claimed that the physician’s incorrect diagnosis prevented them from being able to terminate the pregnancy.

The Texas Supreme Court acknowledged that negligence had occurred as a result of the physician’s failure to inform the parents of the rubella and awarded the parents an amount to cover the cost of rearing the disabled child. Pain and suffering in this early case (Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975)) was not recognized.

In the U.S. wrongful birth is recognized by many, but not all, states. In the view of the New Hampshire Supreme Court in the summing up of Hall v. Dartmouth Hitchcock Medical Center, 2006, a wrongful birth claim was different from any other medical malpractice claim because it was a personal choice whether to terminate the pregnancy or go ahead with the birth in the likelihood that it might give rise to a severely disabled child.

This viewpoint could apply to any of the legal decisions made regarding wrongful birth claims in those states that have recognized it. In the New Hampshire case, costs were awarded for the mental anguish experienced and potential costs considered if the plaintiff had been able to decide whether to seek an abortion in another jurisdiction.

A further case in Illinois (Court of Illinois; Clark v. Children’s Memorial Hospital, 2011) confirmed the New Hampshire decision and also costs to the disabled child’s 18th birthday and for ‘moral suffering’ experienced.

Not all states recognize wrongful birth claims. Kansas, South Dakota, Oklahoma, Missouri, Michigan, Minnesota, Maine, Idaho and Arizona all specifically ban wrongful birth claims in state law.

Wrongful Life Claims

While wrongful birth claims have become generally accepted in much of the U.S. as well as other parts of the developed world (with exceptions as noted above), wrongful life claims have yet to become as common and as acceptable in law.

Wrongful life claims are made on behalf of a disabled child against a physician for the disabilities that the child has to suffer as a result of the physician’s negligence.

Only 4 U.S. states currently recognize wrongful life claims which typically could lead to much larger damage claims than an equivalent wrongful birth claim that compensates the parents rather than the child.

The California Supreme Court was the first U.S. court in1982 to make a decision about awarding a child economic damages as a result of being born with hereditary deafness. It was established by the court that the birth could have been prevented if amniocentesis had been used to detect the condition. Pain and suffering experienced by the child was not recognized in this case.

Med League provides medical expert witnesses to trial lawyers. Please call us at (908)788-8227 or contact us today to discuss your next case.