wrongful birthMost of us are familiar with the concept of “wrongful death.”  When someone dies due to the negligence or intentional wrongdoing of someone else, the legal term for the claim is “wrongful death.”  There is another type of claim that may sound similar, but is very different – a wrongful birth claim.
What is a claim for “wrongful birth?”
Unfortunately, there are some children who are born with severe medical conditions.  In certain situations, the parents of these children bring lawsuits against a hospital or healthcare professional, based on either a misdiagnosis of the condition of the fetus, or negligent genetic counseling.  This type of claim is referred to as a “wrongful birth” claim.  The theory is that, due to the healthcare provider’s negligence, the infant was born with major congenital defects that will require expensive, long-term medical treatment.  In the most unfortunate circumstances, the children are so impaired that the parents are never able to develop a normal relationship with the child.
How is the health care provider liable for the wrongful birth?
A physician has a duty to inform parents about known risks or complications involved in a pregnancy, which are known to the physician.  If that physician fails to do so, he or she can be liable for medical malpractice.  The theory is that, the parent did not have the medical information necessary to make an informed decision on whether to go through with the pregnancy.
In another situation, one or both parents have a genetic condition that carries with it a very high risk of serious birth defects in their offspring.  However, the physician fails to diagnose this condition during genetic counseling, or neglects to inform the parents about the risk of birth defects. The point is, the parents must be informed.
What damages are available in Wrongful Birth cases?
The damages available in a typical wrongful death claim consist of compensation for funeral and burial expenses, medical bills related to the deceased person’s injuries or illness that resulted in death, and other losses associated with the person’s death.
The damages in a wrongful birth claim are very different.  Parents are usually awarded compensation for the costs of caring for a child with birth defects, which can be very extensive.  Compensation can also include expenses for special education, regular medical monitoring and treatment, and other expenses directly attributed to the birth defects.  Courts normally do not include an award for the ordinary costs of raising a child.
Does every state recognize a claim for wrongful birth?
As with wrongful death claims, each state creates its own laws regarding these types of claims.  At this time, only 28 states recognize a wrongful birth claim.  More importantly, 12 states specifically prohibit these claims, including Missouri and Arkansas.  As laws are subject to change, always consult your personal injury attorney to determine the state of the law where you live.
If you have questions regarding wrongful death, or any other personal injury concerns, call the Cottrell Law Office at (888) 433-4861.

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Wesley Cottrell

Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.

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