What would you do if you were told that your unborn child had a debilitating disease? Would you choose to terminate the pregnancy? Would you have the baby and raise him or her to the best of your ability? What if you weren’t given the opportunity to make that decision, even though the facts were known to your doctor?
What Is A Wrongful Birth Claim?
Wrongful birth actions are legal claims where the parents argue that the doctor:
- Failed to properly diagnose a serious medical issue with an unborn child;
- Failed to warn parents of the risk of conceiving or delivering a baby with a serious medical issue; or
- Failed to provide adequate information that would enable the parents to make an informed decision as to whether or not to terminate the pregnancy.
If you have given birth to a child with a serious medical issue and you believe that your doctor failed to diagnose or to warn you of the consequences of giving birth to your child, you may have a valid wrongful birth claim. Let our experienced New York wrongful birth malpractice attorneys walk you through the legal process and determine what your rights are.
Wrongful Birth Claims As Malpractice
The wrongful birth cause of action came to be in 1975 in the pivotal case Jacobs vs. Theimer. In Theimer, the mother developed rubella virus early in her pregnancy. Her doctor failed to inform her that she had contracted the virus and may have a child born with serious medical issues, which precluded her from having a decision whether to terminate her pregnancy. This case brought up a couple of negligence issues, including misdiagnosis of the mother, as well as failure to provide adequate information regarding pregnancy risks.
Following are the necessary components involved in proving medical malpractice for a wrongful birth claim.
A Legal Duty Must Exist
In wrongful birth cases, a parent must be able to prove a number of factors in order to prove medical malpractice. First, the parent must establish that the doctor owed the parent a legal duty. This means showing that there was in fact a physician-patient relationship between the patient and the doctor. This can usually be accomplished with proof that the doctor treated the parent in some way.
The Doctor Must Have Breached The Legal Duty
Next, the parent must show that the physician breached the legal duty, either through misdiagnosis or failure to properly warn of the risks involved in having a child with severe medical problems. Another way a doctor may breach his or her duty to the parent is by failing to explain the prenatal screenings available to determine whether a fetus is at risk of severe birth defects.
The Parent Must Have Suffered An Injury
The parents in a wrongful birth claim must have experienced some type of harm or injury. Usually, this means that the child has a serious birth defect or severe medical condition. In some cases, it may be sufficient to claim that the parent was not given the opportunity to make an informed decision about whether to terminate the pregnancy.
The Doctor’s Negligence Must Have Caused The Injury
The last hurdle for a parent in a wrongful birth claim is to prove that the physician’s mistake caused the parent’s harm. Typically, this means that the parent would have chosen to abort the child if the physician had not failed to diagnose the birth defect or if they failed to inform the parent of the risks involved in delivering the child.
Proving these factors requires expert medical testimony. Our experienced New York malpractice attorneys have a team of medical professionals who can skillfully analyze your case to determine whether medical malpractice is present.
Damages Available In Wrongful Birth Cases
Wrongful birth cases generally allow for damages associated with medical costs and additional expenses associated with raising a child with a severe medical issue. A parent may also recover costs of failed medical procedures and emotional suffering associated with the medical procedure. The medical expenses and pain and suffering associated with the pregnancy and delivery, as well as lost wages caused by the pregnancy, may be part of a damages award.
If you believe that you may have a claim for wrongful birth of your child, trust the New York wrongful birth experts at Schwartzapfel Lawyers P.C. Our skilled litigation attorneys and network of medical experts have what it takes to ensure your rights are protected. Contact us today at 1-888-575-6410 or fill out our online contact form for a free case evaluation. We will fight for you!