Increased Cost of Living: Wrongful Birth and Wrongful Life Suits

Not too long ago, a Florida couple was eagerly awaiting the birth of their new baby. Like most couples, they were excited to bring their little bundle of joy into this world. The doctor and ultrasound technician who read the sonogram didn’t see anything out of the ordinary, so the couple anticipated a healthy bouncing baby boy.

Tragically, however, their son was born without any arms and only a single leg. The joy about their son’s birth quickly shifted to concern and despair.

In what is often called a wrongful birth suit, the couple sued their health care providers for failing to warn them of their son’s disabilities which should have been detected by routine tests. The couple claimed that had they known of their son’s severe disabilities, they would have elected to terminate the pregnancy.

In September 2011, a jury found the physician and ultrasound technician negligent for their failure to properly read sonograms that would have warned the couple of the baby’s disabilities. The couple was awarded $4.5 million for their son’s care. The funds will cover such expenses as operations, prostheses and attendants throughout his life.

When Can Parents Bring Suits for Wrongful Birth or Wrongful Life?

Most people are familiar with civil cases for wrongful death, but have never heard of a lawsuit being brought for wrongful birth or wrongful life. Such suits are relatively uncommon. Nationwide, generally less than ten are brought each year, according to Arthur Caplan, Director of the University of Pennsylvania’s Center for Bioethics.

Wrongful birth suits are brought by the parents. The premise is that a medical provider’s negligent pre-natal testing deprived them of the ability to make an informed decision regarding whether to have a baby with birth defects, or terminate the pregnancy. Once the child is born with disabilities, the parents seek damages for the costs associated with raising a disabled child.

Parents may also bring a suit for wrongful life, but such an action is actually brought on behalf of the child. Essentially, the child argues that he or she would never have been born but for the medical provider’s negligence. The child seeks damages for the expenses of living with a disability.

Why are these suits so rare? They force parents to take an extremely difficult position; essentially they must put forward the argument that a child would be better off not existing at all, in order to receive damages for the child being alive.

It can be heart-wrenching for parents- many of whom are now committed to providing the best life possible for their disabled child- to argue they would have elected not to bring the child into the world if given the option.

Of course, the subject matter of these cases makes them controversial. It is difficult for a judge or jury to say it would be better for a child never to have been born. Courts in about two-thirds of states have permitted such suits. Other states have banned them; these include Utah, Michigan and Georgia.

Conditions Leading to Wrongful Birth and Wrongful Life Cases

Children suffering from a variety of disabilities can be the subject of these suits. Increasingly, medical technology can detect chromosomal flaws, but little can be done to remedy them. Examples include fragile X, cystic fibrosis, anencephaly and Down syndrome. Tay-Sachs is a hereditary disease detectable in pre-natal testing. This is a terrible condition that is fatal to most children before the age of four.

A New York woman pursued a wrongful birth claim against her obstetrician for failing to take standard procedures that would have revealed her child was abnormally small, and led to a diagnosis of Wolf-Hirschhorn syndrome. Children affected by this syndrome commonly suffer from physical disfigurement, respiratory and digestive problems, inability to speak and mental retardation.

In Oregon, a couple was told a tissue sample test ruled out Down syndrome. After their daughter was born with the condition they sued, claiming they would have chosen to terminate the pregnancy had they been told the diagnosis. The couple would not have been alone in their decision to end a pregnancy after a positive Down syndrome screening. Multiple studies have shown around 90 percent of women who are informed their baby will have Down syndrome elect to terminate the pregnancy.

The Southwest Portland couple sought over $14 million in an Oregon malpractice suit to cover the costs of medical care, therapy, education and other living expenses for their daughter. They also sought damages for the emotional distress both suffered, and for the mother’s inability to return to work.

The Future of Wrongful Birth and Wrongful Life Cases

Wrongful birth and wrongful life cases are only expected to increase. More and more women are giving birth over the age of 35, and this is the point when there is a spike in chromosomal birth abnormalities like Down syndrome. The technology to detect birth defects and disabilities through prenatal testing also continues to advance. This leads to more abnormalities being detected, but also a greater potential that some may be missed.

It is difficult to imagine the life-changing choice that parents, informed that the child they are expecting will suffer from a severe birth defect, are forced to make. In this type of heartbreaking situation there are often no good options. Almost nothing can be worse, except maybe not having any choice at all.