The amount of medical malpractice claims arising out of prenatal care and procedures has recently increased dramatically. Since applicable laws and regulations of such claims vary significantly by state, such distinctions should be taken into consideration.
Many commentators divide these malpractice claims into three categories:
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"Wrongful Birth" – the parents sue the practitioner for failing to warn them about possible, or probable, genetic or other problems resulting in the birth of a disabled child
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"Wrongful Life" – a disabled child sues the practitioners (and/or its parents) for being born and having to live with foreseeable defects
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"Wrongful Pregnancy" or "Wrongful Conception" – following birth of a healthy baby, parents sue a practitioner for negligence for failing to perform a sterilization or vasectomy, or for failing to adequately advise the parents of the possibility of pregnancy subsequent to such procedures
While all of these bases for filing a negligent prenatal care lawsuit are common and used in most states, this article focuses primarily on "wrongful pregnancy."
Wrongful Pregnancy (Failed Sterilization) Liability
Most adults probably assume that a completed vasectomy (man) or sterilization (woman) precludes future pregnancy if performed correctly. This is not necessarily true. In fact severed fallopian tubes have been known to heal and restore themselves (usually not until after a year has passed), and men have been known to deliver sperm following a vasectomy. In light of these undesirable results, practitioners have a separate duty to warn of the possibilities.
Specific laws and procedures vary by state, and some states do not even recognize such claims. However, generally, if the claim arises out of a sterilization or vasectomy, the patient usually must prove that the practitioner was negligent in performing the procedure. This is frequently demonstrated by showing that the practitioner's actions fell below the applicable standard of care. This means that the health care practitioner's conduct did not conform to that of a similarly qualified practitioner under the same or similar circumstances. This is usually shown through the testimony of a medical expert.
Damages
Once the patient has shown that the procedure was performed negligently and she was damaged as a result (i.e., the woman became pregnant), the patient may be entitled to recover damages resulting from the negligence. In most states, such damages include:
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Recovery of the costs of the vasectomy or sterilization procedure
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Recovery of the costs associated with the pregnancy and birth
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Compensation for physical and emotional pain associated with each of the above
Damages: Costs for Raising a Child
Some states that allow wrongful pregnancy claims also allow recovery for the costs of raising the child of the unwanted pregnancy. Generally, such states hold that these "costs" are the logical and foreseeable result of the malpractice. As such, they must be recoverable. Other states hold that public policy does not allow a healthy child to be considered a compensable "burden" and that setting a value over such a child's life is wrong.
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