A wrongful pregnancy medical malpractice claim, which is sometimes called a wrongful conception claim, is brought by “parents of a normal but unplanned child [seeking] damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device.” Walker by Pizano v. Mart, 790 P.2d 735, 737 (Ariz. 1990).
A “wrongful birth” medical malpractice claim involves allegations by the parents of a child born with birth defects that the negligence of prenatal health care providers or genetic counselors deprived them of the ability to abort the pregnancy because of the likelihood that the child would be born in an injured or impaired state. Wrongful birth medical malpractice actions are by the parents to recover the damages and expenses accruing to them from having to endure and raise such a child.
A “wrongful life” medical malpractice claim is brought by, or on behalf of, the child. At least two types of claims fall within this category – claims by “normal but unwanted children who seek damages either from [their] parents [or from others] negligently responsible for their conception or birth,” and claims by impaired children asserting that, as a result of the defendant’s negligence, their parents were precluded from making a decision to abort the pregnancy.
A Maryland appellate court opinion from 1984 concluded that, where a negligently performed sterilization results in the birth of a healthy child, the parents of the child could sue the doctor for the expense of raising the unplanned child during her minority, reduced by the value of the benefits conferred on them by having the child. The Maryland appellate court concluded that a cause of action in tort for medical negligence in the performance of a sterilization procedure was well accepted, but that some courts had declined to require the negligent physician to bear the costs of raising the child, as that “would permit the parents to enjoy all the benefits of parenthood while shifting the entire financial burden to the tortfeasor – a burden out of proportion to the physician’s culpability.” The Maryland appellate court addressed that problem by mandating reduction for benefits derived by the parents from the parent-child relationship, noting that the injury to the parents of a normal child was not the child itself and that “damages are not sought on the child’s behalf in such cases.”
As of 2002, 28 U.S. states denied recovery for wrongful life medical malpractice claims – 18 by case law and 10 by statute (IDAHO CODE § 5-334(2000); IND. CODE ANN. § 34-12-1-1 (Michie 2001); ME. REV. STAT. ANN. tit. 24, § 2931 (West 2000) (refusing to recognize wrongful life cause of action when healthy child is born); MICH. COMP. LAWS ANN. § 600-2971 (West 2001); MINN. STAT. ANN. § 145.424 (West 2000); MO. REV. STAT. § 188.130 (2000); N.D. CENT. CODE § 32-03-43 (2001); 42 PA. CONS. STAT ANN. § 8305 (B) (West 2001); S.D. CODIFIED LAWS § 21-55-1 (Michie 2001); UTAH CODE ANN. § 78-11-24 (2001)). Three states, California, New Jersey, and Washington, provided for a limited recovery. Most of the courts that have rejected a wrongful life cause of action have done so on the ground that the child has not suffered a legally cognizable injury as the result of having been born, that, in turn, resting on either a doctrinal unwillingness to accept that life, even in an impaired state, is worse than non-existence.
A New Hampshire appellate court rejected wrongful life medical malpractice claims, stating, in part, that in the ordinary tort case the existence of injury is readily and objectively ascertainable. In wrongful life cases, however, the finding of injury necessarily hinges upon subjective and intensely personal notions as to the intangible value of life, and the danger of markedly disparate, and, hence, unpredictable outcomes is manifest.
The Maryland appellate court, in rejecting a cause of action for wrongful life, stated that an impaired life is not worse than non-life, and, for that reason, life is not, and cannot be, an injury (“In our view, the crucial question, a value judgment about life itself, is too deeply immersed in each person’s own individual philosophy or theology to be subject to a reasoned and consistent community response, in the form of a jury verdict. Allowing a recovery of extraordinary life expenses on some theory of fairness – that the doctor or his or her insurance company should pay not because the doctor caused the injury or impairment but because the child was born – ignores this fundamental issue and strikes us as simply a hard, sympathetic case making bad law”).
Nonetheless, in a wrongful pregnancy medical malpractice case tried before a jury in Virginia in 2016, the jury awarded $1.8 million to the plaintiffs due to a negligently performed sterilization procedure, which was the maximum amount permitted under Virginia law.
If you became pregnant after a sterilization procedure in Maryland or in another U.S. state, you may have the right to file a wrongful pregnancy claim if the failed sterilization procedure was due to medical negligence. Obtaining the prompt advice from a local medical malpractice attorney may help you decide if you can proceed with a medical malpractice case.
Click here to visit our website or telephone us on our toll-free line in the United States at 800-295-3959, to be connected with Maryland wrongful pregnancy lawyers, or wrongful pregnancy lawyers in your state, who may be willing to investigate your possible medical malpractice claim for you and represent you in a wrongful pregnancy medical malpractice case, if appropriate.
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