On June 18, 2012, a Montana state judge gave approval to a medical malpractice case filed in October, 2011 that alleges a claim for wrongful birth. The medical malpractice plaintiffs claimed that had they been advised that their baby would be born with cystic fibrosis, they would have terminated the pregnancy. Instead, the couple are burdened with substantial past and future medical bills for their daughter and they have suffered and will continue to suffer emotional distress as a result of the medical negligence.
The medical malpractice plaintiffs claim that they had discussions with their medical providers regarding the pregnancy being unplanned and that they would desire to terminate the pregnancy in the event that tests indicated that the fetus may have severe genetic abnormalities.
The woman was 38 years old when she became pregnant and chose to undergo genetic testing during the first trimester of her pregnancy. The medical malpractice case alleges that the genetic testing did not include a test for cystic fibrosis despite the woman having expressed to her medical providers her concerns about the disease.
The Montana judge rejected the term “wrongful birth” in describing the couple’s medical malpractice claims. The judge stated, “The ‘wrongful birth’ label is not instructive as any ‘wrongfulness’ lies not in the birth but in the negligence of the physician.”
What Is Cystic Fibrosis (CF)?
Cystic fibrosis (CF) is a life-threatening genetic disease that causes thick, sticky mucus to build up in the lungs, the digestive tract, and other areas in the body that result in life-threatening lung infections and serious digestive problems. The millions of people in the United States who carry the defective gene that causes CF do not have symptoms of the disease because people must inherit the defective CF gene from both their mothers and fathers in order to inherit the disease (there is a 25% chance of having a baby born with CF if the defective gene is inherited from both the mother and the father). It is estimated that 1 in 29 Caucasian Americans have the defective CF gene. CF is one of the most common chronic lung diseases in children and young adults in the U.S.
Most children who have CF are fairly healthy until adulthood, at which time lung disease worsens until the person with CF becomes disabled. The average life expectancy for someone with CF who survives until adulthood is 37 years, which has undergone a dramatic increase during the last 30 years. The cause of death is usually due to lung complications.
The availability in the U.S. of genetic tests during early pregnancy to determine if the fetus may be born with certain genetic disorders offer the expecting parents some level of comfort that their baby will be born healthy. While some pregnant women may decide not to have genetic testing for their own personal reasons, many other women who are pregnant choose to have genetic testing so that they have the results available to them regarding their pregnancies and thereby may exercise their right to decide how they desire to proceed with their pregnancies in the event that the genetic tests are positive for certain inherited diseases.
If your baby was born with certain genetic diseases or genetic disorders that may have been discovered if appropriate genetic testing was timely done during your pregnancy, you may have the basis for a medical malpractice claim. Obtaining the prompt advice from a local medical malpractice attorney may help you decide if you can proceed with a medical malpractice case.
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