Birth-Related Medical Malpractice

Republished with Permission © 2009 Nolo.

Learn about birth-related injuries to babies and mothers -- who can sue, and what damages may be recovered.

Birth-related medical malpractice occurs when a doctor, hospital, or other medical staff acts negligently (fails to use reasonable care) and causes one of the following:

injury to the mother or child during pregnancy or deliverywrongful birth -- when the parents would have ended or avoided a pregnancy if they had known about birth defects, orwrongful pregnancy -- when the parents’ attempt to avoid or end a pregnancy fails.

Each of these claims comes with its own rules for who can sue and what damages can be recovered. (To learn about the requirements for a medical malpractice claim, including common types of claims, read Nolo’s articleMedical Malpractice Basics.)

Birth Injuries to the Mother or Infant

Although rare, sometimes a doctor’s medical malpractice causes either the mother or infant, or both, to be injured prior to or during the birth of the baby. Some examples of malpractice that can cause birth-related injuries include:

negligently failing to control excessive maternal blood loss post-delivery, andnegligently failing to monitor the baby’s oxygen intake pre-and-post-delivery.

Injury to infant. If an infant is injured, the parents must bring the lawsuit, acting as guardians for the infant. On behalf of the infant, the parents may ask for both general and special damages. General damages include the cost of suffering, such as mental and physical pain and suffering, and loss of enjoyment of life. (To learn more about damages in medical malpractice cases, read Nolo’s article Damages in Medical Malpractice Cases.)

Example: A doctor doesn’t use reasonable care and erroneously decides to deliver a baby prematurely. As a result, the baby suffers brain damage. The parents may sue to recover medical expenses incurred to pay for ongoing rehabilitation and developmental needs, as well as pain and suffering since the baby will experience the ongoing trauma of physical and mental disability.

Injury to mother. The mother can bring a claim for medical malpractice if the doctor’s carelessness caused her injury prior to or during birth. For example, if the doctor fails to note the mother’s high blood pressure prior to delivery, a sign of a condition known as preeclampsia, and the mother has a seizure during delivery (which preeclampsia often leads to), the mother may have a claim for medical malpractice to recover for injuries caused by the seizure.

Emotional injury to parents. The parents may also be to sue for the emotional pain and suffering they experience because of their baby’s injury. 

Wrongful Birth

In a wrongful birth action, the parents claim that the doctor should have warned them about their child’s impending birth defects and that if they had known, they would have either avoided the pregnancy or ended the pregnancy.

Usually, the claim is based on:    negligent genetic testing before the child was conceived, ornegligent failure to detect mental or physical impairments in the early stages of pregnancy.

The damages available for a wrongful birth case typically include the costs arising out of the child’s disorder, such as medical expenses and educational therapy. The parents may also be able to recover for the emotional pain and suffering associated with the birth and raising the child.

Most states allow parents to bring wrongful birth claims. A few states have laws that limit recovery of damages. But the vast majority of states do not allow the child to sue for “wrongful birth” (when the child sues, it is somtimes called “wrongful life”).

Wrongful Pregnancy

Parents may sue for wrongful pregnancy if they tried to avoid pregnancy -- either through sterilization, pregnancy testing, or abortion -- but those methods failed due to the negligence of the doctor or medical staff.

In a wrongful pregnancy action, the child is born healthy, but the parents sue for the harm caused by the unwanted pregnancy and birth. The types of damages that may be recovered depends on the state. Though most states allow the parents to sue for costs like medical expenses and lost wages, only some states allow damages for the parents’ pain and suffering caused by an unwanted pregnancy. A few states allow recovery of the costs of raising a healthy but unwanted child, but most do not.

Getting Help

Because birth-related injuries and medical malpractice law can involve complex medical and legal issues, it is often essential to get advice or representation from a lawyer.