Articles Posted in Wrongful Birth / Wrongful Life

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Earlier this month, a Prince Georges County, Maryland jury awarded nearly $400,000 for wrongful birth as the result of the mother/wife becoming pregnant after undergoing a bilateral tubal ligation (BTL) procedure. A BTL is a surgical procedure that involves blocking the fallopian tubes to prevent the female’s egg from being fertilized. In this case, the BTL was performed by cauterization (burning) but it also can be performed by cutting, removing sections of, or placing clips on the fallopian tubes.

In the lawsuit, the Plaintiffs alleged that the woman became pregnant five to eight weeks after undergoing the BTL on January 19, 2011. On April 11, 2014, the woman saw the defendant doctor for a regular visit and advised that she had missed her menstrual period. A pregnancy test was ordered and it was determined that she was in fact pregnant.

After the child was born, a radiological study with dye found that one fallopian tube still was patent (able to carry an egg). She then underwent a second BTL wherein it was found that while the left fallopian tube had been properly cauterized, the right fallopian tube was still perfectly intact. The physician performing this secondary BTL took photographs and video of the tubes before properly cauterizing the right tube, thereby permitting the Plaintiffs to concretely show the jury that a medical mistake had occurred. While the defense took the position that the fallopian tube had regrown – apparently a known risk of such a procedure – the Plaintiffs’ attorneys were able to cast doubt on this theory by showing that the pregnancy occurred within just five to eight weeks of the initial BTL procedure. The jury awarded $397,000 for the future cost of raising the child and did not reduce its award at all for the joy, comfort and society received by the parents from having the child.

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As a Maryland medical malpractice attorney, I am occasionally asked what the difference is among the type of medical malpractice cases that are called wrongful birth and wrongful life cases. These type of cases generally fall into three categories.

The first, sometimes labeled “wrongful conception” or “wrongful pregnancy,” are brought by parents of a normal but unplanned child seeking damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device.

The second, sometimes denoted as “wrongful birth,” consists of cases in which parents of a child born with birth defects allege that the negligence of prenatal health care providers or genetic counselors deprived them of the ability to abort the pregnancy because of the likelihood that the child would be born in an injured or impaired state. Those actions are by the parents to recover the damages and expenses accruing to them from having to endure and raise such a child.

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As a Maryland medical malpracitce lawyer / attorney, many people ask me what is a wrongful birth case. In Maryland, a wrongful birth case is a case in which parents of a child born with birth defects allege that the negligence of prenatal health care providers deprived them of the opportunity to terminate the pregnancy due to the likelihood of the child being born in an impaired state. These type of cases are brought by parents in an effort to recover the economic expenses that will accrue in raising a child with extraordinary needs.

A. The Maryland Seminal Case Recognizing “Wrongful Birth” Claims in Maryland – Jones v. Malinowski

The first case in Maryland to recognize that Maryland permits a wrongful birth claim is Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984). Jones is an action for damages based on negligent sterilization resulting in the birth of a healthy child. The Court of Appeals in Jones clearly stated that Maryland has not established an independent cause of action for wrongful birth cases; instead, it held that wrongful birth cases in Maryland are embraced within the tort of negligence: “there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted.” Id.

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