A birth injury occurs when during the delivery process the mother, the baby or both suffer an injury. A birth defect describes a problem that occurs while the fetus is still in the womb. It is in connection with the latter of these two possibilities that the legal concept of wrongful birth can take place.
For doctors, advances in medical technology can be a mixed blessing. It is now possible to identify a comparative wealth of information about fetal development compared to even a few years ago; information which goes far beyond determining which gender the baby will be. Physical and even genetic defects are now possible to identify early enough for the would-be parents to make the critical decision of whether to terminate the pregnancy if serious potential birth defects are discovered.
But what happens if the doctor fails to identify a debilitating birth defect, or misdiagnoses one? A child born with a serious congenital defect will require specialized medical treatment, and that can become cripplingly expensive; moreover, the defects can be so severe that quality of life issues can arise not only for the infant but for the parents as well.
This painful future is the basis for a wrongful birth cause of action. To prevail in such a claim, the plaintiff must be able to prove that because of the doctor’s failure to properly diagnose the birth defect the plaintiff was unable to make the decision to terminate the pregnancy. Another possible approach would be if one of the parents has a genetic condition that poses a significant risk of translating itself into a birth defect, but did not receive proper genetic counseling from the doctor.
If the plaintiff parents prevail in the wrongful birth lawsuit, they can recover as damages the costs connected with dealing with the child’s birth defect as well as for mental distress.
This post provides only an overview of the topic of wrongful birth. It should be noted as well that unlike some other states, Connecticut does not recognize a cause of action for “wrongful life.” If you need more information about a possible wrongful birth claim, consulting with a personal injury attorney is a good starting point.