Most people are familiar with the concept of "wrongful death," in which one party's negligent or reckless act caused the death of another person. Less well-known is the idea of "wrongful birth." Wrongful birth cases usually involve a child born with a serious medical condition that was not identified despite genetic testing during its mother's pregnancy.
In these cases, had the parents learned of the condition in a timely matter, they would have chosen to terminate the pregnancy. The false negative results of the genetic testing deprive the parents of the opportunity to make that choice.
Suddenly, parents are plunged into a reality they didn't expect and for which they are ill-prepared. The children on whose behalf these cases are filed may not be expected to live long, and may incur tremendous medical expenses during their short lives. Even if they are expected to live, they may require a high level of costly care into adulthood.
Wrongful birth cases are relatively uncommon, and trials in such cases are even rarer. A 2012 Multnomah County jury trial yielded a nearly three million dollar verdict in favor of a Portland, Oregon area couple whose daughter was born with Down Syndrome after prenatal genetic testing indicated she had no chromosomal abnormalities. In that particular case, the small amount of tissue used in testing was actually from the mother, not the child, so the abnormality went unnoticed.
The small number of wrongful birth cases does not necessarily mean that such errors in testing are rare. Rather, it may reflect that in order to make such a claim, parents must do something many find abhorrent: publicly admit that they would have aborted their child. This is difficult and painful for parents who truly love the child they have, but need and deserve financial compensation to properly care for him or her.
Most parents in this situation need to be assured that they are not seeking a windfall for having had a "defective" child. Instead, they and their child were placed in an untenable situation by the testing facility's or doctor's medical malpractice. Filing a lawsuit is the only way for their child to receive the financial support necessary so that he or she can have the best life possible.
Wrongful birth cases are medical malpractice cases, and have the same elements as a typical medical malpractice case: a legal duty, which is created by the doctor-patient relationship; a breach of that duty, such as failure to diagnose a chromosomal abnormality that a reasonable doctor or facility would have identified; and harm or injury that is caused by the breach of duty, such as the medical expenses incurred by the birth of a child with unexpected severe medical problems, who would not have been born but for the negligence.
It can be challenging to prove all of these elements, particularly the requirement that the party being sued did not act as a reasonable and competent medical provider would have under the same circumstances. Testimony from medical experts is essential to the success of a wrongful birth case, so it's important to work with experienced Portland medical malpractice attorneys who have access to the most authoritative and respected experts.
We invite you to contact The Fraser Law Firm P.C. for an analysis of your claim. We have worked with parents in a number of sensitive and painful situations, including water birth injuries and other birth injuries.
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