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Wrongful Birth Lawyer: Common Cases

April 7, 2022  ·  By HM&M

Wrongful Birth Lawyer: Common Cases

Many factors that occur during childbirth can lead families to retain a wrongful birth lawyer. In some circumstances, families are told there is a medical complication with their child—but unfortunately, they are not told how the complication(s) arose. 

These cases are often eerily similar, and parents may be unsure of who to contact once they return home with their disabled newborn. The situation becomes even more confusing if parents begin to consider their option years—or even decades—into the child’s life.

To determine whether your situation necessitates an attorney, start by understanding what wrongful birth is and how it occurs.

What is Wrongful Birth?

In a wrongful birth claim, parents allege that they would have made a different choice regarding pregnancy–avoiding pregnancy, choosing to implant other, healthy embryos during infertility treatment, or possibly terminating an unhealthy pregnancy–had the negligence not occurred during their prenatal testing, genetic prognosticating, or counseling experiences.

The negligence victim (also called the plaintiff) in a wrongful birth claim is the parent, not the disabled child, as the purpose of pursuing a claim is to receive compensation to offset the extraordinary costs that occur when caring for a child with a disability. 

Often times the defendant(s) in these cases are:

Currently, 29 states in the United States of America recognize wrongful birth. In some states, parents may also file suit for emotional distress damages.

How Does a Wrongful Birth Happen?

Wrongful birth occurs when negligent genetic counseling or testing results in the birth of a child with severe mental or physical disabilities. Parents are eligible to file a claim against the doctors, hospitals, clinics, and/or laboratories that were negligent

In most wrongful birth cases, negligence typically occurs during pre-conception or pre-implantation genetic counseling, post-conception genetic testing and counseling, or during post-conception ultrasounds and counseling.

Preconception Genetic Counseling Negligence

In preconception genetic counseling, parents are to be accurately informed of the genetic diseases their child may be prone to. In the event negligence occurs, parents will need to testify that they would have chosen one of the following options had they been provided different information:

  1. The parents would have chosen not to have more children.
  2. The parents would have had the pregnancy closely monitored and/or terminated the pregnancy if the fetus was afflicted with the genetic disease.

Preimplantation Genetic Counseling Negligence

Preimplantation genetic counseling happens when families use IVF to conceive their child. When using this method of fertilization, it is crucial that the correct embryo is transferred to the mother’s uterus. 

It is also important that information is communicated to the parents with respect to the health and vitality of each embryo, because the parents are able to select which, if any, embryos are implanted. 

In the event negligence occurs, parents will need to testify that they would have acted differently if given the correct information. There are many hands involved in pre-implantation genetic diagnosis, which provides parents with many avenues to consider when filing a suit. 

Post-Conception Genetic Counseling Negligence

Post-conception genetic counseling is very common during pregnancy. With this type of counseling, family history, as well as the mother’s age, are considered to determine whether further 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 additional testing occurred or should have been offered. The mother will need to testify that she would have terminated the pregnancy, had she known of the genetic condition. 

Post-Conception Ultrasounds and Counseling Negligence

Mothers will experience post-conception ultrasounds and counseling throughout the duration of the pregnancy. During these ultrasound sessions, anatomical anomalies should be detected. 

Negligence occurs if an anomaly was 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 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.

When Do I Need a Wrongful Birth Lawyer?

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. 

The attorneys at Hurley McKenna & Mertz work closely with physicians and other healthcare professionals to help parents get the answers they need. During a consultation, you will learn more about the process of filing a wrongful birth claim, determine your rights as a parent, and identify the amount of compensation you deserve.

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

Download Our Free Ebook, “How to Support a Child After a Birth Injury”

Did your child suffer a serious and permanent birth injury? Download our free birth injury ebook for actionable resources and more information as you care for your child. It includes details on what a birth injury is, shares emotional and financial support resources, and explains how to know when it’s time to seek justice through legal action.

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