- 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:
- 1. What are wrongful birth lawsuits?
- 2. Who can be held liable in a wrongful birth lawsuit?
- 3. What compensation can a wrongful birth lawyer help me recover?
1. What are wrongful birth lawsuits?
Wrongful birth lawsuits are medical malpractice claims. They claim that the negligence of a doctor or healthcare facility led to a child’s birth injuries. This caused the parents’ losses.
Wrongful birth lawsuits often involve hereditary birth defects that were not detected. Without a correct diagnosis, the parents are kept from making an informed health decision. They could have chosen to terminate a pregnancy, had they known of the problem. They also could have avoided a pregnancy, altogether, had they known of the likelihood of a hereditary disease.
Parents filing a wrongful birth lawsuit have to show:
- The doctor failed to warn them of the risks that their child would have a disability, or did not perform the tests that would have discovered the risks,
- The child was born with a disability,
- If the parents had known of the risks, they would not have conceived the child or carry it to term, and
- The doctor’s negligence was a substantial factor in causing the parents’ losses.1
1.1. When does the malpractice have to occur?
The medical malpractice that deprived the parents the ability to make an informed health decision could happen before or after the child’s conception.2
Pre-conception malpractice often involves a doctor’s failure to detect a genetic condition in the parents. Without knowing about this genetic condition, parents can argue that they could not have made an informed decision. They can claim that this led to their child’s birth with serious medical issues.
Example: A doctor fails to diagnose a child’s deafness as being hereditary. The parents conceive another child, who is also born deaf.3
Post-conception malpractice typically involves a failure to diagnose a congenital birth defect. The parents can argue that, had they known of the defect, they would have terminated the pregnancy. This would mean that, were it not for the doctor’s negligence and malpractice, the parents would not have to care for a child with special needs.
Example: A doctor does not test a pregnant woman’s blood sample and fails to find that the fetus has serious birth defects.4
1.2. Can a failure to perform a genetic test lead to liability in a wrongful birth lawsuit?
A doctor’s failure to run a genetic test can only lead to liability in a 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
1.3. What kinds of injuries can lead to wrongful birth lawsuits?
You can file a 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 a child’s congenital or hereditary defect,6
- Fails to properly perform an abortion,7
- Fails to properly sterilize a parent, leading to an unwanted pregnancy,8 or
- Fails to care for a patient at a mental facility, allowing them to get pregnant, and then failing to diagnose the pregnancy.9
2. Who can be held liable in a wrongful birth lawsuit?
Wrongful life or wrongful birth lawsuits can be filed against healthcare facilities or professionals. These include:
- 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
However, wrongful life lawsuits cannot be brought against defendants who are outside of the medical profession.13 If someone is not a healthcare professional or institution, they do not have a legal duty to keep children safe or healthy.14
3. What compensation can a wrongful birth lawyer help me recover?
The compensation you can recover in a wrongful birth claim is different than in normal medical malpractice lawsuits. In 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 the injured child,
- Any special equipment the child needs, like a wheelchair,
- Home modifications for the child’s disabilities, and
- Costs of the child’s specialized education needs.
This is far more limited than the general damages that are available in other personal injury cases. These other cases can also recover:
These damages are not available in wrongful birth claims.15 Courts have refused to allow them for several reasons:
- The pain and suffering of a child, relative to nonexistence, is unknowable,
- It is impossible to compare the injured child’s life to their previously uninjured life, and
- Compensation is diminished for any benefit the defendant’s negligence caused to the victim.16
Additionally, 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.17
For additional assistance…
Doctors and healthcare professionals make mistakes. If yours caused you to have an unplanned pregnancy or an injured child, you may be entitled to compensation. Contact us to speak with a California wrongful birth lawyer.
For cases in Nevada, please see our page on bringing a wrongful birth lawsuit under Nevada law.
- 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).
- Hegyes v. Unjian Enterprises, Inc., 234 Cal. App. 3d 1103 (Cal. App. 1991) (there was no legal duty when the child’s birth injuries came from a car accident).
- Elsheref v. Applied Materials, Inc., 223 Cal. App. 4th 451 (Cal. App. 2014) (no legal duty from the father’s employer, who exposed the father to radiation on the job, to the child).
- See Turpin v. Sortini, Supra.
- See Turpin v. Sortini, Supra.
- See Turpin v. Sortini, Supra.