LawTalk Blog

A claim for wrongful birth

Claiming for wrongful birth

Too much of a contradiction in terms?  How can a birth be wrong?

Raising a child is a rewarding experience. It is also demanding and expensive. If your child has special needs the expenses increase exponentially.

When you have a child you love but weren’t expecting, a dilemma can arise. When there is potentially medical negligence involved the dilemma increases. What can parents do?

"Importantly, an appropriately skilled lawyer will not judge you."

You can speak to an appropriately skilled lawyer. An appropriately skilled lawyer will certainly take you through the legal aspects but they will also look at the wider issues with you. Importantly, an appropriately skilled lawyer will not judge you.

Just to be clear, we haven’t yet met a parent facing the issue of wrongful birth who was taking action because they did not love their child. The most significant motivation for a ‘claim of wrongful birth is actually the love for the child and the desire to provide for the child.

For there to be a claim for wrongful birth there needs to be medical negligence. For there to be medical negligence there needs to be more than unexpected the birth of a child; there needs to be negligence which caused the pregnancy or allowed the pregnancy to continue.

Potential areas for medical negligence claims in relation to wrongful birth include:

  • Invitro fertilisation – multiple births, incorrect embryo implantation
  • Failed surgical pregnancy prevention – Filshie Clip incorrectly placed or not closed properly
  • Failed termination
  • Failure to diagnose – foetal abnormalities for example, which may result in severe physical and functional disabilities
  • Genetic testing – no referral for testing when there should have been; often a laboratory error.

Negligence is a word which provokes ethical and legal debate.

We need to look at the legal aspects

In South Australia we have the Civil Liability Act 1936 (the Act) which provides our test to assess whether the treatment provided by a professional is negligent or not. This assessment can be tricky.

A medical negligence claim is not available simply because something went wrong. We will now look at the basics of medical negligence.

To start with we need to ask, is there duty of care? In the case of a doctor and their patient, there is a well-established duty of care.

The next question can be a doosy; the assessment of whether the duty has been breached. This is done with reference to the Act and the answer to the question ‘did the person holding themselves out to have a particular skill (for example, an IVF doctor) act with the due care and skill of a person professing to have that skill in the relevant circumstances at the relevant time?’

"Did that breach of duty cause the birth/injury, in this case, pregnancy? "

If the answer is no, we move to question three. Did that breach of duty cause the birth/injury, in this case, pregnancy? The use of the word injury does not usually sit well with parents undertaking a claim for wrongful birth. My colleague, Suzanne Pinyon has written a very apt blog about this called “Establishing causation is a major aspect of medical negligence claims”.

Ultimately, if the answer to number three is “yes”, we then move onto the issue of damages and loss, commonly referred to as medical negligence compensation. The process of making a claim for medical negligence can be very complex especially in cases involving a child with special needs.

An appropriately skilled and experienced lawyer is essential in a claim for wrongful birth. If you’d like to speak with a lawyer about a medical negligence claim, please feel free to get in touch directly with today’s blog writer, Dionne Franklin.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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