Wrongful Birth and Wrongful Life Lawsuits
The term wrongful birth sounds awful: the birth of a child should never be negative or wrong. However, in Tennessee law, there is a cause of action or wrongful birth, and although the term itself may be distasteful, the claim is a very serious one.
The cases that are often called wrongful birth, wrongful life, or wrongful conception, are often confused. The following provides an overview of two of them, and how you may be able to take action.
This is where a pregnancy occurs that was not supposed to occur. Most often, this happens when a contraceptive drug is defective and does not prevent a pregnancy that it was supposed to prevent.
It can also be the result of a failed medical procedure on a male that is designed to prevent pregnancy, such as a vasectomy. In a recent case, a drug manufacturer was sued when its birth control pills were mislabeled (the suit alleged that the order that the pills were to be taken in was mislabeled on the packaging, rendering them ineffective).
In most cases, the child born is relatively healthy. This is simply a cause of action for allowing a child to be born when it should not have been based on procedures or medicines taken by the parents.
The term wrongful birth does involve a medical problem or genetic problem with the child, and generally alleges that the child was born with a mutation, defect, or other problem that was caused by the health care provider’s acts or omissions.
The parents are the plaintiffs on their own, as opposed to being plaintiffs on behalf of the impaired child. This cause of action can also allege that a defect in the child existed, but that medical providers failed to diagnose or recognize it and thus cut off the parents’ right to get an abortion if they chose to do so, or otherwise, the failure to provide the information lead the parents to forego contraception hen they otherwise would have had they known of the defect or mutation.
Proof and Damages
In many cases, these causes of action require parents to prove that had they known about a potential defect, mutation or disability, that they would have not gotten pregnant, or, where legally possible, would have terminated the pregnancy.
One problem with many of these cases is damages. For example, if a cause of action is held by the minor child for wrongful life, what is the value of the damage? This is especially true in wrongful conception. What are the damages to parents who give birth to an otherwise healthy child?
On the other hand, as consenting adults who used legal methods to avoid getting pregnant and did so because of negligence, these parents should have a cause of action or damages.
Call the Knoxville personal injury attorneys at Fox Willis Burnette, PLLC, today to schedule a free consultation to discuss your injury, malpractice, or drug defect case.