If you’re reading this, you may not have to try too hard to imagine the heartache associated with finding out that your newborn baby has a severe birth defect or serious medical illness. This heartache may be joined by anger if this birth defect or medical illness was detectable and preventable during, or even before, pregnancy.
If you have had a child born with a serious birth defect or severe medical illness and, had you known prior to conception or childbirth you would have opted not to carry to term, your child may have the right to make a wrongful life claim. Wrongful life claims are complex, so it helps to have an experienced New York wrongful life attorney on your side to walk you through the process and provide the expert medical testimony that you will need for your child to bring his or her case.
What Is A Wrongful Life Claim?
A wrongful life claim is a medical malpractice action similar to a wrongful birth claim. The key difference is that a wrongful birth claim is brought by the parent, and the wrongful life case is brought by the child born with a disability. Generally, wrongful life actions claim that a health care provider did something wrong, taking away the parents’ right to end a pregnancy.
Typically, wrongful life actions are based on the claims that a health care provider, such as an obstetrician, radiologist, or genetic counselor failed to either:
- diagnose the child’s injury,
- adequately report the child’s injury to other health care providers, or
- properly inform the parent of the child’s injury.
There are a number of genetic or congenital disabilities that are detectable in utero with screening tests such as:
- blood tests
Disabilities commonly associated with wrongful life claims include:
- Holoprosencephaly – detectable with prenatal ultrasound as early as 9-14 weeks
- Cystic fibrosis – detectable during pregnancy through amniocentesis or placental testing
- Spina bifida – detectable in utero through ultrasound, AFP blood screening, and amniocentesis
It is the child, through a guardian or personal representative, that brings a wrongful life lawsuit, claiming that he or she should not have been born.
Determining Liability in Wrongful Life Claims
Defendants in wrongful life claims can be difficult to pin down. Depending on the case, potential defendants can be:
- An obstetrician
- A sonographer
- A radiologist
- A lab
- A lab technician
For example, if a child is born with spina bifida, because it is detectable through multiple screening tests, the sonographer, lab tech, and radiologists may all be liable for failing to observe the signs of the birth defect. Alternatively, they may have observed the signs of spina bifida, but may have failed to communicate the findings to the obstetrician. If they did observe the signs and communicate their findings to the obstetrician and the obstetrician failed to inform the parent, then the obstetrician may be liable.
Because these claims can be so complex, it helps to have an experienced medical malpractice attorney with a broad network of medical experts on your side to assess and prove your child’s claim.
Proving Malpractice In A Wrongful Life Claim
Medical malpractice forms the basis for the wrongful life claim. A general medical negligence standard applies. There are five factors that the wrongful life plaintiff must satisfy:
- A legal duty existed on the part of the healthcare provider.
- The healthcare provider breached that legal duty.
- The wrongful life plaintiff suffered injury (was born with serious defects).
- The healthcare provider’s negligence caused the child to be born.
- The healthcare provider’s negligence caused the parents of the child to incur extraordinary expenses for the child.
Essentially, the child must prove that, had the healthcare provider disclosed the risks that the child would be born with a defect or disability, the parents would have opted to terminate the pregnancy.
If you believe that your child may have a claim for wrongful life, trust the New York wrongful life experts at Schwartzapfel Lawyers P.C. Our skilled litigation attorneys and network of medical experts have what it takes to ensure your child’s 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!