Birth-Related Medical Malpractice

Birth-related medical malpractice is a type of obstetrical malpractice, meaning errors that happen during a pregnancy or during the labor and delivery period. In addition to more common obstetrical negligence claims, birth-related malpractice specifically refers to a handful of less well-known claims, including:

• wrongful pregnancy, a pregnancy that continues after a botched attempt to terminate it, or a pregnancy that follows after a failed sterilization or contraceptive procedure, and
• wrongful birth or wrongful life, when the parents would have ended a pregnancy had they known of their child's disability but were prevented from doing so because of a health care provider's negligence.

There's no such thing as a "simple" or "easy" birth-related malpractice case. They almost always present difficult factual and legal issues, and involve special rules and procedures not found in, say, a car wreck lawsuit. You'll need experienced legal counsel to prepare and present your case in court—if you live in a state that recognizes birth-related malpractice claims.

We start with a quick refresher on medical malpractice and obstetrical negligence cases generally. From there, we'll examine each type of birth-related malpractice case in more detail.

A Word of Caution

In a 2022 case called Dobbs v. Jackson Women's Health Org., 597 U.S. ___ (2022), the United States Supreme Court overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Roe and Casey were bedrock decisions that guaranteed the right to an abortion in some circumstances. In the wake of Dobbs, the Constitution no longer protects a woman's freedom to make her own reproductive health care choices.

(Learn more about Dobbs and its implications for health care and beyond.)

Unfortunately, abortion is just the tip of the Dobbs iceberg. If you live in a state that now outlaws or severely restricts access to abortion, and if your state law recognizes malpractice claims for wrongful pregnancy, wrongful birth, or wrongful life, expect new legal challenges to those claims.

Why? Because to make out a claim for wrongful birth or wrongful life, the mother must prove that had she known of the child's condition, she would have ended the pregnancy. In states that substantially impair or deny a woman's right to choose, proving that element might be a challenge.

Like abortion, birth-related medical malpractice law tends to be highly politicized. That is, a state's laws allowing or prohibiting birth-related malpractice claims probably correlate to the state's political orientation. In states that allow meaningful access to abortion, it's more likely that you can sue for wrongful birth or wrongful life. Anti-abortion states, by contrast, probably don't (or in the future, won't) recognize those claims.

If you think you have a birth-related medical malpractice claim, it's imperative that you speak to a malpractice lawyer in your state who's experienced with obstetrical malpractice cases.

Medical Malpractice Claims Generally

Birth-related claims are a subset of medical malpractice claims generally. To prove a birth-related malpractice claim, you start with the same elements that make up any medical malpractice claim. Let's have a look at the usual elements of a medical malpractice case.

Elements of a Medical Malpractice Claim

Generally speaking, a viable medical malpractice claim requires proof of these four elements. Your lawyer will work with medical experts and other witnesses to prove each element in court.

• The standard of care. The standard of care describes what a reasonably careful health care provider—one with education and training similar to that of your provider—would have done under similar circumstances. Stated a bit differently, the standard of care tells you what your provider should have done to provide appropriate care.
• A breach of the standard of care. The essence of a medical negligence claim is a breach of, or failure to meet, the standard of care. This is where you explain how your care was substandard, meaning what your provider did wrong.
• An injury. You don't have a claim unless you can prove you were injured. How are you worse off now than you were before you received substandard care? To have a viable medical malpractice claim, your injury must be significant.
• Causation. You need to tie your provider's substandard care to your injury with this final element, known as causation. What did your provider do (or fail to do) that caused your injury? Causation will be a problem in birth-related malpractice cases much more often than in other kinds of personal injury claims.

Watch Out for the Statute of Limitations

A "statute of limitations" is a law that puts a limit on your time to file a case in court. Every state has its own medical malpractice statute of limitations. It controls how long you have to file a birth-related malpractice lawsuit. While the deadlines vary, a limitation period of one or two years from the date you were injured is common. In some states, longer deadlines apply to claims brought on behalf of very young children and those who are legally disabled.

What happens if you miss the statute of limitations deadline? Absent an exception that gives you more time to sue, your malpractice claim is legally dead. Nothing you do will bring it back to life. Try to file suit after the limitation period expires and the court will dismiss it as untimely. The other side won't pay you to settle your claim, either, because in the eyes of the law, you no longer have a claim. You've lost the right to seek compensation ("damages") for your injuries.

Obstetrical Malpractice: Errors During Pregnancy, Labor and Delivery

Obstetrical malpractice is a sort of "catch-all" term, describing errors that happen:

• during the pregnancy, usually involving a failure to diagnose or treat a condition in mother or child, or both, or
• during the labor and delivery period, resulting in injuries to mother, child, or both.

Errors During the Pregnancy

A pregnant patient's primary care provider must watch and screen for a variety of pregnancy-related conditions that can, if not properly managed and treated, lead to the mother's or child's injury or death. Here are some common examples.

• Preeclampsia, a condition that typically first appears as maternal high blood pressure. If not well managed, preeclampsia can lead to preterm birth and to life-threatening conditions like eclampsia and HELLP syndrome.
• Eclampsia. Severe preeclampsia can lead to neurological problems including seizures or coma. When the condition progresses to those symptoms, it's called eclampsia.
• Gestational diabetes. About seven percent of all pregnant women develop gestational diabetes, meaning diabetes that first appears during pregnancy. Infants of mothers whose diabetes isn't well controlled often grow very large in utero. That's a condition known as fetal macrosomia, which can cause complications during delivery.
• Placental abruption, meaning separation of the placenta—which helps to supply the fetus with oxygen and other nutrients—from the uterine wall. Severe cases can lead to fetal growth problems, preterm birth, or stillbirth.

Errors During the Labor and Delivery Period

These errors often involve acute, sometimes life-threatening conditions that appear during labor and delivery or in the hours or days immediately before or after delivery. Here are some typical examples.

• Maternal bleeding. Blood loss can happen in any pregnancy, but it's more common in cesarean (surgical) deliveries.
• Perinatal asphyxia, meaning a lack of oxygen to the baby. Asphyxia can be caused by a number of conditions, including umbilical cord compression and wrapping of the cord around the baby's neck. In severe cases, oxygen deprivation leads to brain damage or death.
• Fetal brachial plexus injury. The brachial plexus is a bundle of nerves in the shoulder area. These nerves can be injured in labor and delivery. For example, shoulder dystocia happens when the baby's head is delivered but a shoulder gets stuck in the birth canal.

Other Birth-Related Malpractice Claims

The remaining birth-related malpractice claims—wrongful pregnancy, wrongful birth, and wrongful life—are less common and, as a result, less well known. We cover the basics of each, and explain what impact the demise of Roe and reproductive choice might have on their continued viability.

This table indicates the states that (as of March 2023) allowed or prohibited each of these birth-related malpractice claims. (See Note, The Impact of Post-Dobbs Abortion Bans on Prenatal Tort Claims, 122 Mich. L. Rev. 377, 392 (2023).) Your lawyer can explain the current state of the law in the place where you were injured.

Wrongful Pregnancy

In a wrongful pregnancy case, parents sue a health care provider for the damages resulting from a pregnancy they tried to avoid. The parents sought to avoid pregnancy via a vasectomy, sterilization procedure, or birth control, or they tried to terminate an unwanted pregnancy. The procedure failed and the parents find themselves with a healthy, but unwanted, child.

Most states allow wrongful pregnancy claims. Of the states that do, many prohibit damages for the costs of raising the child. New Hampshire, for example, allows a claim for wrongful pregnancy. But the parents' damages are limited to the medical expenses and related costs of the pregnancy and childbirth, pregnancy-related pain and suffering, the cost of a sterilization procedure, and the mother's lost wages during pregnancy. (See Kingsbury v. Smith, 122 N.H. 237, 243 (1982).)

Michigan law is much the same. In a wrongful pregnancy case, the parents can't recover damages for "daily living, medical, educational, or other expenses necessary to raise a child to the age of majority... ." (Mich. Comp. Laws § 600.2971(3) (2024).)

Some wrongful pregnancy cases are likely to be at risk after Dobbs. In states that outlaw abortion entirely, it won't be possible to claim that a negligently-performed abortion failed to end an unwanted pregnancy. What about claims based on a pregnancy following a careless vasectomy, tubal ligation, or contraceptive procedure? They might be in jeopardy as well, because they're based on ideas central to Roe and cases upon which Roe was based.

Wrongful Birth

A wrongful birth case rests on the premise that the parents would have ended or avoided a pregnancy had they known their child suffered or was likely to suffer from a genetic or other abnormality that would:

• leave the child profoundly disabled, or
• lead to the child's death.

In the usual wrongful birth case, the parents claim their provider was at fault for:

• negligent genetic testing done before the child was conceived, or
• negligent failure to detect fetal genetic defects or other impairments in the early stages of pregnancy.

Nearly half of all states plus the District of Columbia let parents to sue for wrongful birth. As with wrongful pregnancy claims, though, a number of states limit the damages parents can collect.

Here's an example. Suppose a couple's ancestry includes a history of Tay-Sachs disease, a progressive, genetically-inherited condition that typically appears within the first few months of life and progresses to death between two and four years of age. Knowing this history, the couple consulted with a genetic specialist for Tay-Sachs testing after pregnancy was confirmed.

Because of a patient identification error in the genetic specialist's clinic, the doctor incorrectly told the couple their child didn't have Tay-Sachs disease. After an uneventful birth, symptoms began to appear at around five months of age. The child died 20 months later. Had they known their child was Tay-Sachs positive, the couple would have ended the pregnancy.

They bring a wrongful birth claim against the doctor and the clinic. Would a reasonably careful genetic specialist, one with education and training similar to that of the couple's doctor, have made the same error under the same circumstances? The couple's genetics expert will explain that the provider's error fell well short of the standard of care, and why.

Many wrongful birth cases rest on the availability of abortion to terminate an unwanted pregnancy. Post-Dobbs, those claims are certain to face legal challenges in states that outlaw or severely restrict access to abortion. For reasons discussed above in connection with wrongful pregnancy cases, cases claiming that a couple would have tried to avoid pregnancy through contraceptive procedures might be at risk, too.

Wrongful Life

Wrongful life claims are much the same as wrongful birth claims. The most significant difference? A wrongful life claim is brought by or on behalf of the disabled child to recover damages associated with having been born disabled. The gist of the claim is that but for a health care provider's negligence, the child wouldn't have been born.

Wrongful life claims are, as a rule, disfavored under the law. Just four states—California, New Jersey, Rhode Island, and Washington—allow a disabled child to sue for wrongful life. Most states have considered and rejected wrongful life lawsuits.

Damages in Birth-Related Malpractice Cases

In a successful suit for birth-related malpractice, the parents of the child can expect to recover what the law calls "compensatory damages." As the name suggests, these damages compensate the winning plaintiffs (the parties filing a lawsuit) for their injuries and losses. Compensatory damages fall into two categories: Economic and noneconomic damages.

Economic damages. Costs, expenses, and losses that come directly out of pocket, or that are paid by a health or other insurance company, are referred to as "economic damages." Common examples include hospital and medical bills, lost wages and benefits, amounts paid for replacement household services like childcare or lawn maintenance, and other sums the injured party actually pays or loses.

Noneconomic damages. These are damages that aren't paid directly out of pocket. They're meant to compensate for injuries like pain and suffering, emotional distress, disability and disfigurement, loss of enjoyment of life, and more. Note that many states limit, or "cap," noneconomic damages, especially in medical malpractice cases. Where they exist, these caps will apply in addition to damages limits specifically applicable to birth-related malpractice damage exclusions.

In a wrongful pregnancy or wrongful birth case, when damages aren't otherwise limited by law, parents can recover damages from the date of the child's birth until the child reaches adulthood. In a wrongful life suit, by contrast, the disabled child is allowed to collect future damages for the remainder of the child's life expectancy.

Get Help With Your Birth-Related Medical Malpractice Case

Birth-related malpractice cases are among the most difficult and costly of all personal injury claims. Following Dobbs, the degree of difficulty likely will increase exponentially. Without experienced legal counsel in your corner, you stand little chance of success.

Make it a fair fight. Hire an attorney to handle your birth-related malpractice claim. When you're ready, here's how to find a lawyer who's right for you.