Wrongful birth cases are unusual. Essentially, the claim is that a defendant was negligent, and the defendant’s negligence resulted in the birth of plaintiff’s disabled child. Most often, it involves parents who were concerned about the potential for genetic defects for their unborn child, and had decided that if the fetus would be born with the serious genetic defect, that they would terminate the pregnancy. Unfortunately, the legal claim arises when a defendant – perhaps a health care provider or lab – fails to do the right tests, or fails to correctly interpret the tests, and tells the parents that the fetus is fine when it is not.
Then, when the baby is born with the serious birth defect, the parents find themselves in a “cruel quandary.” They are left with a baby typically in need of extraordinary future medical expenses and care costs, with no other avenue than the civil justice system for money to pay for these things.
The damages allowed in such case include not only the difference in cost of raising the child versus raising a normal child, but also the parents’ mental anguish and emotional distress less any emotional benefits they received from having the child.
Certainly, any case is complicated both factually and emotionally. Some pro-life advocates do not agree with allowing any recovery for the birth of a child. One recent article detailed the comments of a pro-life advocate discussing such as case: “I hope when little Bryan grows up he never Google’s himself or his parents. I can’t imagine the horror when he reads that his parents wish they would have killed him.”
You can read the full article here:
[“Wrongful Birth” Lawsuits Present a Cruel Quandary for Parents][1]
Such comments certainly highlight the speaker’s stance on abortion, but if we start from the position that our society has determined that abortion is legal in certain instances, it is not much of a leap to understand why such claims not only exist, but are useful in our society to reallocate resources away from the entity responsible for the harm, and to the victim who will be forced to need such resources in the future.
Recently a Washington jury returned a significant verdict in such a case. The facts were similar to those outlined above. Two future parents were concerned that one of them was a carrier of a genetic mutation, and knew that if their unborn child had the defect they would make the very difficult choice to terminate the pregnancy to prevent that harm. They took the proper tests, but there were miscommunications between the ordering provider and the lab company responsible for the testing, and the parents were told the baby was fine. Unfortunately, the baby did carry the genetic defect and was born with severe deficits.
The jury returned a significant verdict, and it was supported with the facts that, although the boy was born with such deficits, the genetic disorder did not significantly impact his life expectancy, so he will need extraordinary care not for years but for decades.
Abortion is a deeply dividing topic, and very personal for the people who have to seriously consider it for themselves. In such cases as folks worrying about bringing a child into the world with serious genetic defects, the option exists in our society to terminate the pregnancy. When that option is taken away by the negligence of a health care provider or lab company, the law in Washington allows for the costs of caring for the child to be born by those entities.
[1]: http://farmingtonhills.legalexaminer.com/medical-malpractice/wrongful-birth-lawsuits-present-a-cruel-quandary-for-parents/ ““Wrongful Birth” Lawsuits Present a Cruel Quandary for Parents”
