Wrongful birth in Nevada is a medical malpractice claim that parents bring against their doctor for allowing or causing their baby to be born with a disability. Wrongful birth is an entirely different professional negligence claim from “wrongful life”, which is where the special needs child themself sues the doctors: Nevada law currently does not recognize wrongful life claims, only wrongful birth ones.
A classic wrongful birth scenario is an obstetrician failing to tell a patient that her amniocentesis came back positive for Downs Syndrome or another life-altering disorder. Had the doctor not failed to warn the patient of the results of these prenatal tests, she might have aborted the fetus.
Then the baby is born, leaving the mother emotionally and financially unprepared for the lifelong ramifications of having a special needs child. So she sues the doctor for wrongful birth in pursuit of financial compensation to help pay for child care and medical expenses.
In this article, our Las Vegas personal injury attorneys discuss:
- 1. What is wrongful birth in Nevada?
- 2. Who can I sue for it?
- 3. How do I prove wrongful birth?
- 4. What money can I get?
- 5. What is the statute of limitations of wrongful birth in Nevada?
- 6. Can special needs children sue for wrongful life?
1. What is wrongful birth in Nevada?
Wrongful birth is a legal claim in which a parent or parents allege that a medical provider either:
- Did not properly diagnose a fetus’s serious medical problems and handicaps; or
- Did not properly warn the parent(s) of the risk of conceiving or giving birth to a child with a serious medical problem; or
- Deprived the parent(s) of making an informed decision about whether to terminate the pregnancy because of a serious medical problem or abnormality with the fetus; or
- Injured the fetus prenatally or during the child’s birth.
These cases typically arise when a pregnant woman orders fetal testing as part of her prenatal care with the intention of aborting the fetus if results show that it would grow to be a disabled child – and the doctor fails to give the mother the full test results. Then when the baby is born with impairments, the mother sues the doctor for those negligent acts.1
Note that wrongful birth is a separate cause of action from wrongful pregnancy, where medical malpractice leads to an unwanted pregnancy (such as after a botched tube-tying operation).2
Obstetricians who fail to tell pregnant patients their fetus is congenitally diseased face wrongful birth suits.
2. Who can I sue for it?
Typical defendants in wrongful birth cases include the mother’s obstetrician and any other health care providers who:
- failed to inform the mother of the fetus’s disabilities or what they entail, or
- injured the baby prenatally or during birth.
Depending on where the doctor works, the baby’s parents could also sue the hospital, clinic, and/or medical group associated with the doctor.3
3. How do I prove wrongful birth?
A wrongful birth claim is a type of medical malpractice claim in Nevada. In these situations, the parent will need to prove the following elements:
- The doctor owed the parent a legal duty. This means that there must have been a doctor-patient relationship between the parties.
- The doctor breached that duty. The breach may have occurred when the doctor misdiagnosed a serious medical problem or if the doctor failed to properly warn or explain the risks associated with giving birth to a child with a serious medical condition.
- The parent or child suffered some type of harm or injury. Generally, this harm is having a child with a serious birth defect or medical condition. In some cases, it is enough for the parent to claim she was harmed when she was deprived of the chance to make an informed, intelligent decision about whether to terminate the pregnancy.
- The doctor’s mistake caused the injury or harm. Had the doctor’s actions not fallen short of professional standards, the parents would not have been harmed.4
The major evidence in these cases includes the doctor’s medical records and notes as well as any recorded conversations between the doctor and parents of the child. It is perfectly legal in Nevada for parents to record their medical visits without the doctor knowing.5
4. What money can I get?
Parents bringing wrongful birth actions in Nevada pursue the following damages:
- Past and future medical expenses for medical treatments throughout the child’s life;
- Special educational costs; and
- Pain and suffering, including the parents’ emotional distress.
Note that parents can seek compensation for medical care to cover expenses even after the child reaches the age of majority. According to Nevada case law, courts look at how long the child will be dependent on the parents – which may be for the extent of the child’s life.6
5. What is the statute of limitations for wrongful birth in Nevada?
The statute of limitations to bring a wrongful birth lawsuit in Nevada is the sooner of:
- 3 years from the date the doctor caused the disability; or
- 1 year after the parents discovered – or should have discovered – the disability.
In many cases, a disability is clear right after birth. Sometimes, a disability does not manifest until months or years later.7
6. Can special needs children sue for wrongful life?
No, Nevada law does not recognize the claim of wrongful life, which is where special needs children sue the medical establishment for allowing them to be born.
In justifying its refusal to entertain wrongful life claims, the Nevada Supreme Court explained:
Recognizing this kind of claim [wrongful life] on behalf of the child would require us to weigh the harms suffered by virtue of the child’s having been born with severe handicaps against “the utter void of nonexistence”; this is a calculation the courts are incapable of performing.
So although parents of a special need child can bring a claim for wrongful birth, the child itself has no grounds in Nevada to bring a claim for wrongful life.8
Doctors liable for wrongful birth may have to pay for the child’s medical expenses.
Wrongful birth cases are heartbreaking to parents of a child, especially when the birth of a child is supposed to be a joyful celebration of human life. Some parents feel shameful bringing wrongful birth claims because they love their babies despite their disabilities and are grateful they did not abort them.
Though you can still cherish your child while seeking compensation from the doctors who failed to warn you of vital information that you had every right to know ahead of time. Having a special needs child is expensive, and you deserve all the compensation possible from the doctors whose medical negligence caused your child to be brought into a world where having disabilities is a massive liability.
If you have further questions about bringing a wrongful birth action or similar such actions, feel free to contact our Las Vegas medical malpractice lawyers. Our Nevada law firm serves clients throughout the state.
See our related articles on wrongful death claims. For tort cases in California, please see our page on wrongful birth lawsuits in California.
Legal References
- Szekeres v. Robinson (Nevada Supreme Court, 1986) 102 Nev. 93. See also Procanik by Procanik v. Cillo, (New Jersey, 1984) 97 N.J. 339, 478 A.2d 755 (re. congenital rubella).
- See note 1.
- See note 1.
- See note 1.
- NRS 200.650.
- NRS 125B.110. Greco at 346 (“Recognizing this kind of claim on behalf of the child would require us to weigh the harms suffered by virtue of the child’s having been born with severe handicaps against “the utter void of nonexistence”; this is a calculation the courts are incapable of performing.”).
- NRS 41A.097.
- Greco v. United States (Nevada Supreme Court, 1995) 111 Nev. 405.