Wrongful birth is the legal terminology used to describe a claim brought by the parent(s), against a healthcare professional or institution, usually following the birth of a child with a serious genetic condition. It is a difficult concept to comprehend, and very difficult for the parent(s) and families involved.
Such a claim would usually arise as a result of the following:
Congenital abnormalities:
Sadly, some babies are identified during the course of the pregnancy as suffering a congenital abnormality that may be life limiting and/or have a significant impact on their quality of life.
Ordinarily, parents are counselled as to the abnormality noted and are given appropriate information to enable them to make an informed decision regarding the pregnancy. However, there can be occasions when either the abnormality is not identified, and should have been, or it may be the parent(s) have not been informed of the abnormality such that the pregnancy has continued, when it otherwise would not have done.
Claims concerning congenital abnormalities are often brought on the basis of the following:
- Failure to identify and/or act upon a congenital abnormality during the pregnancy.
- Failure to notify the parent(s) of the congenital abnormality and implications for the child and family.
- Failure to allow the parent(s) the opportunity to consider their options, such as termination of pregnancy, had they been made aware of the congenital abnormality.
If there is a failure in the treatment provided and a detectable abnormality remains undiagnosed until birth, this results in the parents being prevented the right to be fully informed and choose whether to continue the pregnancy or not.
Failed sterilisation or failed vasectomy:
It may be that a sterilisation or a vasectomy procedure has failed due to negligent or substandard treatment, this could result in a pregnancy that would otherwise have not occurred.
In this situation, a wrongful birth claim could be pursued against the hospital for the birth of a child that would otherwise not have been conceived had the treatment been of an acceptable standard.
Proving a wrongful birth claim
To succeed with a wrongful birth claim, we must prove two things:
- That there has been negligent treatment falling below the standard to be expected of a reasonably competent medical practitioner in that field of medicine; and
- That the negligent treatment has led to the pregnancy and birth of a child, that would otherwise have not occurred.
In cases involving congenital abnormalities it is necessary to establish that had the parent(s) been informed of the congenital abnormality that they would have chosen to terminate the pregnancy. This can be a very difficult issue to discuss and needs to be approached with the utmost sensitivity and respect. It is understandably a very complex and emotional situation.
How is compensation calculated?
If successful then compensation can provide for the additional cost of raising and supporting a child with additional needs and disabilities, such as medical expenses, therapies, equipment, care and accommodation. Additional financial losses arising from the disabilities can be claimed but only in circumstances where the negligence has resulted in the birth of a child with additional needs.
A claim will not include any compensation for the cost of raising a child born without such additional needs, for example as a result of a failed sterilisation or failed vasectomy.
It may be possible in some circumstances to claim for the emotional distress caused by the negligence.
Having the right legal team to represent you is vital:
These claims are incredibly complex, and it is vital that you have an experienced, specialist, medical negligence solicitor to pursue your claim. Not only are the claims difficult legally and medically, but as mentioned above they need to be approached with sensitivity to the distress of the family and the difficult discussions which have to take place.
How Nelsons can help
Emma Zukowska is a Partner in our Medical Negligence team, which is ranked in tier one by the independently researched publication, The Legal 500, and Commended in The Times Best Law Firms 2024.
At Nelsons, our specialist team is highly experienced in dealing with such claims and would be able to provide the right advice and support for you and your family.
If you have any questions in relation to the subjects discussed in this article, then please get in touch with Emma or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.
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