For many people, having a healthy baby is a source of great joy; there’s a reason that a birth is often referred to as a “blessed event.” But pregnancy can also take a great toll on the pregnant person: physically, emotionally, and financially. And if a person does not want to have a baby, they are faced with the difficult choice of either terminating the pregnancy, surrendering a child for adoption, or raising a child they did not plan to have. To prevent unwanted pregnancy, many people turn to their doctor for birth control devices such as an IUD (intrauterine device) or for tubal ligation (having their fallopian tubes “tied.”)
Most of the time, such birth control options are highly reliable and long-lasting (and in the case of tubal ligation, usually permanent). But what happens when a doctor performs a tubal ligation or implants a birth control device, and a woman gets pregnant anyway? Can she sue the doctor for the unwanted pregnancy, even if the baby is healthy?
Often, the answer is yes. If some negligence on the part of the doctor performing the implant or surgery caused the birth control to fail, the doctor may be liable for medical malpractice.
“Wrongful pregnancy” is the name of the cause of action (claim) on which a person can file a lawsuit if they became pregnant due to a professional’s negligence. Often wrongful pregnancy suits arise out of a doctor’s failure to properly implant a birth control device or perform a sterilization procedure. Wrongful pregnancy claims can also stem from a pharmacist’s error in filling a birth control prescription, such as giving the wrong medicine instead of birth control pills.
An abortion provider who fails to terminate a pregnancy can also be subject to a claim for wrongful pregnancy. And if a birth control device was properly implanted, but the device itself was defective or inadequate, the manufacturer of the device could have liability.
People may wish to avoid pregnancy for a number of reasons; the person who would carry a pregnancy and their partner are in the best position to decide whether they want to get pregnant. One reason many people choose to prevent pregnancy is concern about having a child with an inherited genetic disorder, such as cystic fibrosis or Duchenne muscular dystrophy. Children born with certain conditions may need extra care, may suffer from complications during their lifetime, and may have a shortened life expectancy.
If a person seeks a doctor’s help to prevent pregnancy because they want to avoid conceiving a child with a serious genetic condition, and the doctor’s negligence allows such a child to be conceived and born, the parents may have a cause of action on behalf of the child for “wrongful birth” or “wrongful life.”
Wrongful birth claims can also arise when parents have genetic testing performed during a wanted pregnancy. If the parents would have terminated a pregnancy had they known of a genetic abnormality, and were told their child was genetically normal, they may also have a claim for wrongful birth.
Any medical malpractice lawsuit requires damages—an amount of money that a court can award to an injured person in an attempt to make them whole. What are the damages in a wrongful pregnancy case? They can include a number of things, such as:
If a person wanted to prevent pregnancy to avoid the birth of a child with serious medical issues, and the unwanted pregnancy results in a child with a medical condition, damages could be even greater. They might then include expenses for the child’s ongoing medical treatment and therapy, the cost of equipment needed to care for the child, lost wages for a parent who must give up work to care for the child, and more.
The decision to file a claim for a wrongful pregnancy or wrongful birth is a difficult one. It requires the parents to acknowledge, among other things, that they would not have had a pregnancy (or continued a pregnancy). That admission is something they may not want the resulting child to ever become aware of.
However, the expense and suffering resulting from an unwanted pregnancy can be considerable, particularly if a child is born with severe medical needs. The only way to get compensation for those expenses may be to file a claim for medical malpractice. There is only a limited window in which to file such a claim, and once that window closes, it does not reopen. If you are considering filing a claim for wrongful pregnancy or wrongful birth, you should discuss your options with experienced Oregon medical malpractice attorneys before making a decision. If you have questions about wrongful pregnancy or wrongful birth claims in Oregon, we invite you to contact Huegli Fraser to schedule a consultation.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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