A Georgia woman has filed a $5 million wrongful pregnancy lawsuit against oral contraceptive maker Qualitest Pharmaceuticals. She claims she became pregnant despite taking her birth control pills in the packaging sequence.
Qualitest has recalled a number of brands and lots of the pills because they were packaged in the incorrect sequence for effective contraception.
The woman's asking for damages for pain and suffering, mental anguish, loss of capacity for the enjoyment of life, expensive health care and treatment, loss of earnings, and a loss of ability to earn money.
The lawsuit seeks class action status for all women who've become pregnant because of this product defect.
If you knew beforehand that your child would be born with a serious medical problem or birth defect, what would you do? Would you give birth to the child and do your best to raise him, or would you terminate the pregnancy? What would you do if you weren't given the chance to make that decision at all?
Wrongful birth is a legal claim or cause of action where a parent (or parents) argues her a doctor:
- Didn't properly diagnose a serious medical problem with an unborn fetus, or
- Didn't properly warn the parent of the risk of conceiving or giving birth to a child with a serious medical problem, or
- Deprived the parent of making an informed decision about whether to terminate the pregnancy because of a serious medical problem with the fetus (these last two usually are closely related)
Not all states let parents sue for wrongful birth, and laws are different in the states do allow such suits, such as Florida and New Jersey. Nonetheless, some basic principles apply in practically every wrongful birth lawsuit. For instance:
Essentially, wrongful birth lawsuits are medical malpractice lawsuits. The parent needs to prove:
The doctor owed the parent a legal duty. This typically means showing there was a doctor-patient relationship between the parent and the doctor. Medical records showing the doctor gave her prenatal medical advice or treatment can establish this.
The doctor breached that duty, such as by misdiagnosing a serious medical problem or by not properly warning the parent about the problems and the risks involved with having a child with a serious medical problem.
For example, a doctor may breach his duty by not explaining to his pregnant patient the various prenatal screenings and tests available to determine if her fetus is at risk of having serious birth defects.
Next, the parent must show that the she suffered some type of harm or injury. Typically, the harm claimed by a parent is the fact that she has a child with a serious birth defect or medical condition. Sometimes it's enough for the parent to claim she was harmed by not being given the chance to make an informed, intelligent decision about whether or not to terminate the pregnancy.
Finally, the parent must prove that the doctor's mistake caused the parent's injury or harm. Generally, this comes down to a claim that the parent would have chosen to abort the fetus if the doctor didn't misdiagnose or fail to detect the birth defect, or; didn't fail to inform the parent of the risks involved with giving birth to a child with a serious defect.
Damages in wrongful birth cases usually are limited to medical costs and expenses associated with caring for a child with a serious medical condition or birth defect. However, in some states, like Illinois, parents may recover extra damages for the emotional stress involved with raising and caring for such a child.
Not an Easy Suit
A wrongful birth lawsuit is usually a complicated legal matter. That's because of all the things a parent must prove to win the case. Often, expert witnesses, like other physicians, are needed to prove that the parent's doctor was negligent. For example, they're often needed to show that another competent and reasonable physician in the same or similar circumstances would have done something differently in the parent's case, such as ordered a certain genetic test.
Don't Be Confused
Some states, like New York and Illinois, allow a cause of action for wrongful life. They're very similar to wrongful birth actions, but the main difference is that the child, not the parent, sues the doctor. Sometimes, a parent sues on behalf of the child, and sometimes the child sues the parent, too.
The main idea behind these cases is that the doctor's negligence in failing to diagnose or discuss with the parent the risks of a serious birth defect led the parent not to terminate the pregnancy. As a result, the child asks for damages to compensate him for having to live with a serious birth defect or medical condition.
Also, many states allow parents to sue for wrongful pregnancy. This is where a healthy child is born, but the pregnancy was unwanted and unexpected. It usually involves a doctor's negligence in performing a medical operation to prevent pregnancies, such as a vasectomy. Again, the regular rules for medical malpractice apply to these cases.
As for damages, parents typically may recover the costs of the failed medical procedure, as well as damages for pain and suffering caused by the medical procedure. Sometimes the parents may also recover damages for the medical expenses and pain and suffering connected to the pregnancy and birth, and the mother's lost wages caused by the pregnancy. Though rare, it's possible for parents to get damages for the costs of rearing or raising the child until he reaches the age of majority, usually 18 years old.
Questions for Your Attorney
- Can I sue for wrongful birth in our state? How much will it cost?
- Do I have to pay taxes on any money damages I win in a wrongful birth suit?
- What happens if the damages awarded to me in my wrongful birth lawsuit are more than my doctor's malpractice insurance coverage?