A wrongful birth lawsuit in California is a type of medical malpractice claim. It alleges that your doctor’s failure to diagnose a serious medical condition in your unborn baby prevented you from making an informed medical decision about whether to keep it.
Wrongful birth lawsuits demand compensation to cover your losses. In California, that compensation is limited to recovering:
- Medical expenses, and
- Other financial burdens of raising a child with a birth defect.
Wrongful birth lawsuits are different from wrongful life lawsuits. Wrongful life lawsuits are brought by the child who was born, while wrongful birth claims are brought by the parents.
In this article, our California personal injury lawyers explain:
- Wrongful Birth Lawsuits
- When the Malpractice Occurs
- Genetic Testing
- Types of Malpractice
- Who can I sue?
- Compensation
- Additional Reading
Wrongful birth lawsuits often involve hereditary birth defects that were not detected.
Wrongful Birth Lawsuits
California Civil Jury Instruction (CAC) 512 spells out the elements of wrongful birth claims. To win a lawsuit, you (the parent) have to prove the following elements by a preponderance of the evidence:
- The doctor failed to warn you of the risks that your child would have a disability, or did not perform the tests that would have discovered the risks,
- Your child was born with a disability,
- If you had known of the risks, you would not have conceived the child or carried it to term, and
- The doctor’s negligence was a substantial factor in causing your losses.1
When the Malpractice Occurs
The medical malpractice that deprived you of the ability to make an informed health decision could happen before or after your child’s conception.2
Pre-conception malpractice often involves a doctor’s failure to detect a genetic condition in you or your co-parent. Without knowing about this genetic condition, you can argue that you could not have made an informed decision about getting pregnant.3
Post-conception malpractice typically involves a failure to diagnose a congenital birth defect. This would mean that, were it not for the doctor’s negligence and malpractice, you would not have to care for a child with special needs.4
Genetic Testing
A doctor’s failure to run a genetic test can only lead to liability in a California wrongful birth lawsuit if it would more likely than not have found the problem.
If a particular genetic test only finds a condition less than half the time, the doctor cannot be liable for not performing the test.5
Types of Malpractice
You can file a California wrongful birth lawsuit any time a doctor’s malpractice leads to an unplanned child or pregnancy. This includes when a doctor:
- Does not properly diagnose your child’s congenital or hereditary defect,6
- Fails to properly perform an abortion,7
- Fails to properly sterilize you, leading to an unwanted pregnancy,8 or
- Fails to care for you at a mental facility, allowing you to get pregnant, and then failing to diagnose your pregnancy.9
Wrongful birth lawsuits can be filed against healthcare facilities or professionals.
Who can I sue?
Wrongful birth lawsuits in California can be filed against healthcare facilities or professionals. These include:
- Doctors,
- Surgeons,
- Hospitals,
- Clinics,
- Mental health institutions,10 and
- Sperm banks.11
Institutions like hospitals can be held liable through vicarious liability. This legal doctrine holds employers responsible for the negligence of their employees.12
Compensation
In California wrongful birth lawsuits, you can only recover losses associated with the birth injury. This can include:
- Medical expenses for treating the congenital injury,
- Costs of specialized care for your injured child,
- Any special equipment your child needs, like a wheelchair,
- Home modifications for your child’s disabilities, and
- Costs of your child’s specialized education needs.13
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- The Disabling Impact of Wrongful Birth and Wrongful Life Actions – Harvard Civil Rights-Civil Liberties Law Review.
- Better Off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims under the Americans with Disabilities Act – Tennessee Law Review.
- Wrongful Life and Wrongful Birth: The Devaluation of Life with Disability – The Journal of Public Policy, Administration, and Law.
- Courts and Wrongful Birth – Americans with Disabilities.
- Legal Ableism, Interrupted: Developing Tort Law & Policy Alternatives to Wrongful Birth & Wrongful Life Claims – Disability Studies Quarterly.
Legal References:
- California Civil Jury Instructions 512.
- Gami v. Mullikin Medical Center, 18 Cal. App. 4th 870 (Cal. App. 1993).
- Turpin v. Sortini, 643 P.2d 954 (Cal. 1982).
- Gami v. Mullikin Medical Center, Supra.
- Simmons v. West Covina Medical Clinic, 212 Cal.App.3d 696 (Cal. App. 1989).
- Andalon v. Superior Court, 162 Cal. App. 3d 600 (Cal. App. 1984) (Down’s Syndrome).
- Stills v. Gratton, 55 Cal. App. 3d 698 (Cal. App. 1976).
- Custodio v. Bauer, 251 Cal. App. 2d 303 (Cal. App. 1967).
- Foy v. Greenblott, 141 Cal. App. 3d 1 (Cal. App. 1983).
- Foy v. Greenblott, Supra.
- Johnson v. Superior Court, 101 Cal. App. 4th 869 (Cal. App. 2002).
- See Mary M. v. City of Los Angeles, 814 P.2d 1341 (Cal. 1991).
- See Turpin v. Sortini, Supra. Any compensation awarded to a successful wrongful life lawsuit brought by the child gets deducted from similar compensation in a wrongful birth claim brought by the parents