A Nationwide Birth Injury Resource

Wrongful Birth Lawsuits Shed Light on Importance of Proper Physician Counseling

Newborn babyFuture parents who have not been properly counseled by their medical provider about terminating a pregnancy due to a significantly increased risk of transmitting pre-tested genetic disorders or congenital abnormalities to their unborn child are taking legal action against negligent doctors in the form of wrongful birth lawsuits.

When a doctor fails to appropriately disclose the risk of a child being born with a genetic defect, parents can suffer significant harm and end up having to pay extraordinary costs to provide long-term care for their child. Add in the emotional toll placed on parents who have a child with a genetic defect that results in their child living an extremely poor quality of life ─ or one that only lasts a short amount of time ─ and it’s not surprising that some wrongful birth claims have rightly resulted in multi-million-dollar verdicts.

A controversial and sensitive topic

Wrongful birth claims are a type of medical malpractice lawsuit that asserts the medical provider owed a duty of care to the parents to disclose and counsel about the risk of genetic or congenital defects and that the medical provider failed to properly disclose or counsel, resulting in the pregnancy going on to delivery and the baby being born with severe illness or disability, or worse yet, suffering a far-too-early, painful death.  What makes wrongful birth lawsuits controversial is that in order for a mother to prove wrongful birth, she must testify that she would have terminated her pregnancy had she been properly counseled by her physician about the increased risks of having a baby with a genetic defect or congenital abnormality.

Currently, New Jersey is one of 28 states that recognizes the validity of wrongful birth lawsuits, while a dozen states specifically forbid them. The 12 states that currently prohibit wrongful birth lawsuits are:

  • Pennsylvania
  • North Carolina
  • Georgia
  • Arkansas
  • Missouri
  • Kentucky
  • Michigan
  • Oklahoma
  • Minnesota
  • Utah
  • South Dakota
  • Idaho

Parents who have a child with a genetic birth defect end up incurring extraordinary expenses in the form of additional medical costs, time, and resources to properly raise their child and meet their child’s needs. Many children born with genetic defects will never be able to live independently of their parents due to severe disabling conditions and are often faced with poor quality of life ─ all because a medical provider failed to give parents information that would have allowed them time to consider terminating the pregnancy.

An immense obligation to provide proper counseling

Medical providers, such as obstetrician-gynecologists, are required to provide appropriate pre-test and post-test counseling to their patients in regard to genetic test results.

According to a protocol set forth in a bulletin published by the American College of Obstetricians and Gynecologists (ACOG) in 2017 and reaffirmed in 2019, obstetricians and gynecologists “…should have procedures in place that ensure timely disclosure of test results to patients. Pretest and posttest counseling should be done in a clear, objective, and nondirective fashion, which allows patients sufficient time to understand information and make informed decisions regarding testing and further evaluation or treatment.”

The ACOG also states that:

  • Obstetricians and gynecologists should have protocols in place to make sure test results are communicated in a timely manner to optimize options for evaluation and care;
  • If a medical provider does not have the necessary knowledge or expertise in genetics to properly counsel a patient, that patient should be referred to a medical provider who can provide appropriate counseling so the patient can make an informed family-planning decision;
  • Medical providers need to communicate results to patients in the context of counseling;
  • The significance of the test results, a description of the diagnosis and its prognosis in the context of contemporary care and practice, and the options for further evaluation and management should be discussed;
  • Discussions/counseling should enable patients to understand the likelihood of their child having a particular condition and empower the patient to make a decision about whether to proceed with further testing;
  • Medical providers should be prepared to discuss all reproductive management options with patients, including termination of the pregnancy.

Parents suffer harm due to physician negligence

Future parents who do not receive appropriate counseling from medical providers about a mother giving birth to a child with a serious genetic or congenital abnormality have been denied the freedom to make a truly informed decision as to whether or not they should terminate their pregnancy.

The decision whether or not to terminate a pregnancy due to the likelihood that the child will be born with a serious genetic defect is one that should be made after careful thought and consideration – after all, each family is different, with different values and beliefs. When a medical provider fails to appropriately disclose the risk of a genetic disorder being transmitted to an unborn child, that medical provider has deprived parents of the opportunity to fully consider all their options, and may cause their patient extreme harm.

When parents have a child with a genetic disease because they were not given information about the risk of a severe disability during the pregnancy, they suffer damages that include:

  • Excessive medical expenses
  • Physical pain and suffering during birth
  • Loss of consortium
  • Mental and emotional anguish
  • Extreme costs associated with long-term care and supervision of the child – including costs not covered by insurance or Medicare/Medicaid.

Parents can hold negligent physicians accountable

It’s incomprehensible to see medical providers fail to properly counsel their patients about having a baby with a severe genetic defect when so much is at stake. Future parents often put a great deal of planning and thought into their reproductive choices, and when a physician interferes with that process due to negligence, that physician should be held accountable for their actions.

Parents who are at risk of having a child with a serious genetic defect have a right to make an informed decision about how they’d like to proceed. Whether one agrees with terminating a pregnancy or not, to have a physician fail to adequately disclose information about the health of one’s baby shows a disregard by the doctor for the rights of those parents.

If you had a child with a genetic defect or congenital abnormality and you don’t believe you were appropriately counseled by your medical provider, you may be entitled to compensation. Visit helpforyourbaby.com for a free and confidential consultation.

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