Wrongful birth is a highly controversial term. It is used to describe a form of medical malpractice where the birth of the child should not have happened if malpractice had not occurred. In essence, a couple is suing a physician for allowing a child to be born when it was not intended – such as a child who is severely deformed, suffers from a deadly genetic disorder, etc. These types of claims are extremely emotional, difficult to litigate, and can leave parents feeling devastated. In most cases, a couple will lose their child or have a child who will suffer for the rest of life.
There are three types of wrongful birth claims that can be filed in the state of Connecticut, including:
Wrongful birth claims can also be based on a physician’s failure to warn a vasectomy patient of their need to use birth control several months following a successful procedure. Wrongful birth suits are all based on a single premise: That the parents of the child wrongfully born would have avoided conception or would have aborted the fetus had the malpractice not occurred.
There are 28 states in the country that recognize the need for wrongful birth claims, but there are 12 that specifically prohibit them. The state of Connecticut does recognize and allow wrongful birth claims, but plaintiffs are still held to the burden of proof requirement.
In order to succeed with a wrongful birth claim in the state, the plaintiff must prove that the healthcare provider owed a duty of care to that patient. They then must show that the duty of care was breached and that the plaintiff suffered damages as a result of that breach. In the event that the plaintiff is claiming that the defendant failed to inform them of a potential birth defect or failed to detect a birth defect via genetic prenatal screenings, the plaintiff must then also prove that the mother would have aborted the fetus had she learned about the defect.
The issue of damages in these types of cases is highly controversial. No state thus far has allowed damages to cover the entire cost of raising a child. Often, the damages are limited to the cost to continue the pregnancy, to deliver the child, and the costs associated with the abnormalities that the child may suffer. Damages can be awarded for pain and suffering in this type of case. There is also the potential offset of damages by calculating the positive impact the child’s presence has on the parent’s lives.
In these cases, the child’s parents or legal guardians would file the suit on behalf of the child.
Filing a wrongful birth suit is complicated and requires an attorney with extensive malpractice experience. If you have a child who was born with an abnormality that should have been discovered in initial testing, or if you feel that you have a wrongful birth suit, time is of the essence. Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation. Call us or contact us online to get started.