Wrongful Birth Explained

WRONGFUL BIRTH CLAIMS-WHAT ARE THEY?

What is a wrongful birth claim? You may have read that a woman received a jury award for the wrongful birth of her baby. How could the birth of a baby be “wrongful”? What exactly is the woman receiving compensation for?

It really goes back to a doctor’s duty of informed consent. A doctor is required to disclose certain things to a patient. Specifically, a doctor must disclose medical risks that a reasonable patient would think are important. The doctor does not have to disclose every possible risk, though.

For example, if you are having surgery, your doctor must disclose to you the common risks of that surgery. Similarly, a doctor caring for a pregnant woman must disclose certain things to her. If there is a foreseeable risk of a birth defect, the doctor must tell his patient. If he doesn’t, and the child is born with a birth defect, the mother may have a claim for wrongful birth. Had the mother known about the birth defect, she might have terminated the pregnancy.

In order to have a valid wrongful birth claim, the mother does not have to prove that the doctor caused the birth defect. The claim arises because the doctor did not properly inform the mother beforehand of the possibility.

However, the mother must prove that she would have terminated the pregnancy, had she known about the problem in time.

A wrongful death lawsuit enables the mother to recover the enormous costs of caring for a handicapped child. She can also recover for her emotional distress.

Of course, whether to terminate a pregnancy is a moral decision. Many women choose not to terminate a pregnancy, even if they know that they will give birth to a child with a birth defect. These women’s choices should be respected.

However, other women would not have wanted to give birth to a child with a birth defect. The law allows such women a claim for wrongful birth. Sometimes, the claim is referred to as “wrongful life.”

If you are a woman considering having a child, I recommend that you and the potential father get screened for potential birth defect risks. You should do this even before you become pregnant. You should also request from your doctor a complete explanation of all foreseeable birth defect risks.

After pregnancy begins, the fetus can be tested. Based on the results, your doctor should inform you of any specific risks you face.

You can read the actual jury charge that New Jersey judges use here in wrongful birth cases.

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