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Common Wrongful Birth Case Scenarios: Know When to File a Lawsuit

April 5, 2023  ·  By HM&M


If you’ve recently become a parent to a newborn, you are likely familiar with genetic testing. Every expectant mother is subject to genetic testing, but how the process is executed can make all the difference.

As prenatal genetic testing becomes more common, there has been an increase in negligent genetic counseling from physicians, fertility specialists and clinics, and hospitals. When negligent genetic counseling or testing results in the birth of a child with severe mental and/or physical disabilities, parents can pursue compensation through a cause of action known as wrongful birth.

There are a few scenarios during pregnancy that may lead a family to retain a wrongful birth lawyer. For example, a medical professional may tell a family there is a complication with their child but does not reveal how the complication(s) arose—only for the family to discover it was a result of negligence.

Lawyers specializing in wrongful birth cases can help you and your family obtain compensation against the individuals or institutions at fault. The compensation is meant to help with the unique financial burdens of caring for a child with birth defects. Compensation can be used for:

  • Tuition for specialized schools serving children with learning disabilities
  • Medical costs for ongoing treatment
  • Costs for at-home medical care

Additional compensation can also cover emotional distress damages. In fact, Hurley McKenna & Mertz helped change the law by successfully arguing to the Illinois Supreme Court that it should recognize the right of parents to recover for the emotional distress caused by this devastating form of malpractice.

To determine whether your situation necessitates an attorney, start by understanding what wrongful birth is and how it occurs. Continue reading to learn more about the most common scenarios that lead to wrongful birth cases and how often cases are filed—and won.

What Is A Wrongful Birth Lawsuit?

In a wrongful birth lawsuit, a parent alleges that the medical providers who facilitated testing, exams, or assessments during fertility treatments or pregnancy failed to provide pertinent information or counseling to the parents before the baby’s birth, resulting in the birth of a child with severe disabilities.

The parents of a child born with a genetic or congenital disorder have a wrongful birth lawsuit if they allege that they would have avoided conception or terminated the pregnancy had the negligence not occurred during their prenatal testing, genetic prognosticating, or counseling experiences.

In a wrongful birth claim, the negligence victim, also called the plaintiff, is the parent, as the purpose of pursuing a claim is to receive compensation to offset the extraordinary costs of caring for a child with a disability. A wrongful birth lawsuit is not the same as a wrongful life suit, which is initiated by the child affected by the birth defect.

Common Wrongful Birth Case Scenarios

Negligence is related to wrongful birth since families can receive negligent genetic counseling from physicians, hospitals, and fertility clinics. Below are some scenarios in which a wrongful birth suit may be filed.

Preconception Genetic Counseling

Preconception genetic counseling helps parents make conception decisions by determining the risk of passing on certain genetic diseases to their children.

If negligence occurs, parents will need to testify that they would have chosen not to have the child or terminated the pregnancy had they been provided with different information. Affected parents may also testify that they would have had the pregnancy more closely monitored.

The courts will then determine if the information provided to the parents was accurate and whether different information would have influenced the parents’ choice about the birth of their child.

Preimplantation Genetic Diagnosis

Preimplantation genetic counseling occurs when families use in vitro fertilization, or IVF, to conceive their child. With this method of fertilization, it is critical that the correct embryo is transferred to the mother’s uterus.

During IVF, parents undergo treatments to create embryos that are tested for genetic mutation, and medical professionals advise which embryos are affected. Because the parents select which embryos are implanted, accurate information must be shared concerning the health and vitality of each embryo.

In the event of negligence, parents must testify that they would have acted differently if provided with the correct information. Parents have different avenues to consider when filing a suit since many hands are involved in a preimplantation genetic diagnosis.

In preimplantation genetic diagnosis cases, the courts will determine:

  • What did, or could, the analysis show with respect to the embryo?
  • How was this information communicated to the parents or the IVF providers?
  • Was the correct embryo transferred?
  • Was informed consent given?

Failing to meet these standards could indicate negligence on behalf of IVF providers, laboratories, or other actors.

Post-Conception Genetic Counseling

Post-conception genetic counseling is very common during pregnancy. With this type of counseling, an obstetrician considers the mother’s family history and age to determine whether further prenatal genetic testing is warranted.

Negligence may occur when further testing is needed, but results are not accurately conveyed to the parents. In these cases, the court will determine if something in the patient’s medical history or age may have warranted further testing. The mother will need to testify that she would have terminated the pregnancy had she known about the genetic condition.

Post-Conception Ultrasound and Counseling

Mothers will experience post-conception ultrasounds and counseling throughout the pregnancy. Post-conception ultrasounds and counseling are typically the first steps in determining if there is a problem with a child’s development.

If there is a failure to identify an anomaly, it may provide cause for a wrongful birth lawsuit against a laboratory, radiographer, radiologist, and/or obstetrician. Negligence also occurs if an anomaly is detected but not accurately conveyed to the mother, or if the mother was not provided counseling services to advise her of further screening options.

A court will determine whether more or simply accurate information would have changed the parents’ decision to carry the pregnancy to term. A mother will need to testify that she would have terminated the pregnancy had she known of the anomaly.

How Often Cases Are Filed—And Won

Wrongful births occur more often than you think, and each state has unique legislation as it pertains to wrongful birth and wrongful life claims. Even though wrongful birth scenarios may occur regularly, wrongful birth cases and trials are relatively rare. Currently, 29 states in the United States recognize wrongful birth, while 12 states have laws that prohibit the recognition of wrongful birth claims.

Hurley McKenna & Mertz has a lengthy history of fighting for medical malpractice victims. Our experienced, compassionate attorneys have taken on many of the region’s biggest hospitals and have secured millions in compensation for victims. A few examples are offered below:

  • A 6-year-old girl who suffered a hypoxic brain injury at birth when a Chicago-area hospital failed to properly treat the mother’s preeclampsia. In 2023, we reached a $10 million settlement.
  • A child born at Northwestern Memorial Hospital in Chicago suffered a brain injury as a result of the physicians’ failure to perform a timely Cesarean section. The boy required special needs classes and would be cognitively unable to live independently as an adult. We argued on his behalf, and a jury ultimately awarded a $14 million verdict.
  • In another case, a federally employed obstetrician waited too long to deliver a baby girl after the mother suffered a placental abruption. The physician thought the baby was dead, and the ensuing delay resulted in the girl suffering a permanent brain injury. Our team filed a case and ultimately reached a settlement of $13 million for the girl’s injury.
  • We also argued on behalf of a child in a breech position, with the umbilical cord cutting off the baby’s oxygen. The nurses and doctors failed to detect this, and the baby was born with a brain injury. We secured an $11 million structured settlement for the child’s care.

Through another case, in which we had reached a $10 million settlement, we were able to change an Illinois law so that parents of profoundly disabled children could recover damages when medical malpractice led to wrongful birth. In this situation, doctors ensured dedicated mother Amy L. Clark that if she had another child, he or she would not inherit the Angelman Syndrome gene that inflicts her older son, Brandon. When her second son, Timothy, displayed the same symptoms as Brandon, she was devastated to learn that her doctors’ lack of attention and malpractice would cause her family to pay a high price. In turn, she enlisted Hurley McKenna & Murtz to file a lawsuit. The case lasted about 10 years, ultimately resulting in the change in law.

Hurley McKenna & Mertz: Chicago’s Top Wrongful Birth Lawyers

If you or your loved one had genetic counseling or testing services and your child was born with a genetic condition that was not identified prior to birth, you should seek counsel from a wrongful birth lawyer. Negligent testing and/or counseling services are grounds for a wrongful birth lawsuit.

Hurley McKenna & Mertz is the leading law firm in Chicago in the area of wrongful birth. We not only have extensive experience representing families injured by medical malpractice related to genetic testing and counseling but also helped change the law. We successfully argued to the Illinois Supreme Court that it recognize—for the first time—the right of parents to recover from the emotional distress caused by this devastating form of malpractice.

To see a truly uplifting story of one family our Chicago wrongful birth lawyers have helped, see the Clark family’s story.

If you believe a healthcare professional made a mistake prior to your child’s birth, contact us today for a free consultation.

Find Out How to Support Your Child After a Birth Injury

For parents who have a child with a birth injury, your daily tasks revolve around the child’s needs, and supporting them in every way possible is your number one priority. To help, we’ve created this free ebook containing resources that have helped our many clients support their families after the unthinkable. We list top support groups, de-mystify medical jargon, and explain how to know when it’s time to seek justice through legal action. Download it today.

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