Wrongful Birth
April 14th, 2009 | 
Author: Parents of an impaired child may have a valid wrongful birth claim if a physician failed to inform them of the increased possibility that the mother would give birth to a child suffering from birth defects thereby precluding an informed decision about whether to have the child.[1]
The elements of a wrongful birth claim are
1) an undisclosed fetal risk
2) the risk materialized
3) was reasonably foreseeable
4) proximate causation
5) had plaintiff been informed she would have terminated the pregnancy[2]
The wrongful birth claim is a claim of the parents, not the child. The child’s claim is referred to as a wrongful life claim.
Damages include the emotional as well as financial impact of being denied the opportunity to terminate the pregnancy. A wrongful birth claim may arise from failure to diagnose or warn of foreseeable birth defects, an improperly performed abortion, or a failure to warn of potential side effects of medication.[3]
A wrongful birth claimant is required to allege and prove that the pregnancy would have been terminated.[4]
[1] Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460 (1983).
[2] Canesi v. Wilson, 158 N.J. 490, 730 A.2d 805 (1999).
[3] See Robak v. United States, 658 F.2d 471 (7th Cir. 1981)(Failure to warn that mother’s contraction of rubella early in pregnancy could lead to sever defects in child); Liddington v. Burns, 916 F. Supp. 1127 (W.D. Okla. 1995)(After two unsuccessful abortion attempts mother was told that fetus was probably normal.); Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460 (1983)(Failure to warn of potential side effects of mediation).
[4] Reynier v. Delta Women’s Clinic, Inc., 359 So.2d 733 (La.Ct.App. 1978); Thornhill v. Midwest Physician Center of Orland Park, 337 Ill. App.3d 1034, 272 Ill. Dec. 432, 787 N.E.2d 247 (2003).
Posted in Medical Malpractice
