A wrongful birth is said to occur when during the course of pregnancy, the medical provider fails to inform parents of the potential congenital birth defects or birth complications that may result in eventual disability of the baby. This typically happens when the medical provider negligently withholds vital information about the baby’s prenatal condition from the parents or fails to diagnose an identifiable birth defect or birth complication during pregnancy.
In a wrongful birth, the negligence of a medical provider deprives the parents from their right to make an informed decision about whether to continue with their pregnancy. A baby’s disability or malformation occurring from wrongful birth is a consequence of congenital or genetic factors not reported or not diagnosed prenatally (during pregnancy).
In a case of wrongful birth, the parents may have grounds to pursue a medical malpractice claim against the medical provider for negligence. If the medical team’s alertness could have led to the testing, detection, and interpretation of prenatal abnormalities, and they had dutifully warned the parents about it, the parents would be in a position to consider termination of their
pregnancy.
When a wrongful birth occurs, the child may require expensive and prolonged medical care, go through lifelong pain and suffering, the parents may have to cut back on their professional work and lifestyle to care for the child, and in some cases, the parents may even be deprived from enjoying a normal relationship with their child. Families can file a medical malpractice lawsuit to recover compensation when a child is born with birth defects or birth complications, such as cerebral palsy, due to wrongful birth.
Not all states recognize the parents right to recover for a wrongful birth. Miller Weisbrod Olesky offers free consultations. We will let you know your legal rights at no cost to you.
Examples of Wrongful Birth
Wrongful birth typically occurs when the medical professionals:
Fail to order timely and appropriate imaging tests, lab tests, or other diagnostic tests that should have been performed
Interpret the test results incorrectly, make a misdiagnosis, or provide inaccurate information to the parents
Neglect to inform parents about the genetic risks or potential birth defects in a timely manner
Example 1
The medical provider may neglect to perform a maternal serum (alpha-fetoprotein or AFP) screening test during the second trimester. Abnormally high levels of AFP could have indicated that the baby might have spina bifida (neural tube defect). At the same time, an advanced ultrasound scan in the second trimester could also accurately diagnose spina bifida (if the doctor detects a lesion on the fetus’s back).
When this diagnosis is missed due to medical negligence or the parents are not properly informed about it, baby may be born with spina bifida, which is a congenital birth defect that causes paralysis and other lifelong complications. In this case, the parents may have a strong medical malpractice case for wrongful birth.
Example 2
An expectant mother visits her medical provider during the first trimester of pregnancy. If she has not been vaccinated for rubella virus before pregnancy, has travelled to an international destination, or shows symptoms that should cause clinical suspicion of rubella maternal infection, the medical provider should order a maternal serum test or virus culture test.
Failure to diagnose with this condition with a simple blood test may result in the wrongful birth of a baby with congenital rubella syndrome (CRS). The baby may suffer from lifelong birth defects, such as heart malformations, hearing impairments, and eye defects. In this case, the parents may have grounds to claim medical negligence, which caused wrongful birth.
Screening Tests to Prevent Wrongful Birth
Advancements in diagnostic technology and techniques allow medical professionals to detect fetal abnormalities well before the baby’s birth and sometimes even forewarn couples who are planning a pregnancy. Screening tests conducted particularly during the first or second trimesters are most helpful in avoiding wrongful birth. These tests may include:
Ultrasound scans
MRI scans
Maternal serum tests
Blood tests
Genetic counseling followed by genetic testing before pregnancy to test for conditions that could affect the baby
Wrongful Birth vs. Birth Injury vs. Birth Defects
Birth Injury: When an otherwise healthy baby suffers birth trauma or injury before, during or immediately after labor and delivery, it is legally termed as a birth injury. For example, severe hypoxia (lack of oxygen to the baby’s brain) during the birthing process may cause hypoxic-ischemic encephalopathy (HIE), which is a serious birth injury potentially leading to cerebral palsy.
Birth Defects: Birth abnormalities occurring typically due to genetic conditions during the early stages of the pregnancy are legally called birth defects. In addition to genetics, other possible causes of birth defects may include smoking, alcohol or substance use, advanced maternal age, maternal health, or use of certain medications by the mother.
Wrongful Birth: A medical provider’s failure to diagnose a baby’s birth defect due to negligence or failure to inform and explain to the parents their available options with regard to the pregnancy is legally known as wrongful birth. A doctor’s failure to test or inform parents prior to pregnancy about their significant risk of birth defects may also constitute wrongful birth.
Legal Elements to Prove in a Wrongful Birth Lawsuit
To establish wrongful birth, the following four legal elements must be present:
A relationship between the patient and the medical provider must exist. In other words, the doctor should have offered some type of medical advice, consultation, or diagnosis to the parents.
The medical provider must exhibit negligence by not performing a diagnostic test on time, not interpreting the test results accurately, or not informing about the results and risks to the parents.
The parents suffered harm in terms of having a baby with serious health condition or disability and not being given the opportunity to make an informed decision about ending the pregnancy.
The medical provider’s negligence is directly linked to this harm. It means the parents would have chosen to terminate the pregnancy if they had been informed of the risks to the baby.
Is Your Child’s Wrongful Birth the Result of Medical Malpractice?
Parents whose children suffer from birth defects or birth complications are entitled to answers as to the cause of their child’s injury and whether mistakes by the doctors and nurses contributed to the wrongful birth.
During the pregnancy, were there clear indications that the baby was at a risk of developing birth defects, but appropriate actions were not taken by the medical provider?
Did the medical team fail to order a series of tests to diagnose this birth complication in a timely manner?
Did the doctors fail to interpret the test results correctly or ignored the test results?
Our national birth injury attorneys have extensive experience in this and all areas of birth injury medical malpractice. The lawyers and nurses at Miller Weisbrod Olesky will help you determine if mistakes of the medical providers caused a wrongful birth of your child.
Our award-winning birth injury attorneys represent families all over the United States in their time of need after a wrongful birth. We use our skills and expertise to obtain for you and your child a medical malpractice settlement that will help provide specialized medical therapy in order to maximize the quality of life and independence of your child throughout their life.
Sometimes families are reluctant to contact a medical malpractice lawyer. It’s also not uncommon for parents to feel overwhelmed by the responsibilities they encounter in caring for their injured child and worried that they will not be able to help out in a lawsuit involving their child’s birth complication. Our wrongful birth attorneys and nursing staff will address these hesitations and concerns, so you can focus on your child and maximizing their care.
Registered Nurses and Nurse-Attorneys Are a Vital Part of Our Birth Injury Team…and Yours
Our team of registered nursing staff and nurse-attorneys bring a deep level of medical and personal insight to every client’s case. Our nursing team includes both an experienced labor and delivery nurse as well as an ICU nurse. Working closely with the rest of the team, they investigate the reasons behind a birth injury and how medical professionals breached their standard of care.
Why Should You Talk with the Highly Capable Attorneys at Miller Weisbrod Olesky?
The only way to find out if you have a wrongful birth case is to talk to a lawyer experienced in wrongful birth. It takes a detailed expert review by a birth injury attorney of the medical records from your child’s birth to determine if the wrongful birth was the result of medical malpractice.
At Miller Weisbrod Olesky, a team of committed lawyers, nurses and paralegals uses our detailed medical negligence case review process to assess your child’s potential wrongful birth case. We start by learning more about you and your child and the status of meeting/missing developmental milestones. Then we gather medical records to determine what happened before, during pregnancy. We call in documented and proven medical experts who review your records and let us know if they think medical errors could have caused a wrongful birth.
If we feel medical negligence caused or contributed to wrongful birth in your case, we meet with you to discuss how you can receive compensation from the medical professionals who made the errors. Our birth injury attorneys have recovered millions of dollars in settlements for families of children that have suffered due to wrongful birth.
At no point in our legal intake process will we ask you to pay anything. The medical review of your case and the consultation are free. We only receive payment when you do no matter how long or tough your case is.
Contact Our Birth Injury Lawyers
Miller Weisbrod Olesky
At Miller Weisbrod Olesky, the attorneys, nurses, and staff understand that parents of children with birth injuries feel overwhelmed. So, every client has the attention and support of a team of trained, compassionate professionals. But we don’t just offer compassion.
We offer a process to help you discover whether your child’s birth injury, HIE, cerebral palsy or brain injury was caused by a medical error.
Call our offices today at 888.987.0005 for experienced assistance in a free consultation.
Lyric C. I feel like our voice was heard in a sense of what can possibly go wrong in a delivery and finding us answers. I feel with our settlement, we are now in a comfortable position to provide for our son.
Lyssa L. They are not just people that say “hey let's get you money and let's go” The law firm was very thorough with us. It was awesome. I don't want to cry, because I think about and it's amazing that they were able to help me and that we were able to help my son and get the story out there.
Jay C. Throughout the process, one thing was clear to us, the ultimate interest of our child was the utmost concern of Max and his team and as parents navigating a situation like that, that was refreshing to know we had them firmly on our side. I highly recommend them.
