Wrongful Birth/ Birth Defects

A wrongful birth case is an actionable tort in New York and  New Jersey, meaning that if you have a child born with a birth defect that could have been detected early in the pregnancy, or was one for which you should have been tested for and informed about by a medical professional before conception (and in some circumstances during your pregnancy), you may have a wrongful birth case.

Further, had you known about the risks or the condition that would likely have resulted in your child being born with the severe defect, and that this knowledge would have permitted you to legally choose whether to have an abortion, you may have grounds for a lawsuit.

The tort of wrongful birth occurs when a medically negligent act or omission causes the birth of a child with a disability. It is not the negligence of the medical professional that led to the defect, only his or her failure to detect it or to warn you.

Only an experienced wrongful birth attorney can adequately advise you of your rights and whether grounds exist for a possible wrongful birth lawsuit.

Circumstances Leading to Wrongful Birth

There are a number of circumstances that can lead to a wrongful birth. A mother relies on the expertise of her physician for the safety and health of her unborn child. When prenatal testing fails to detect an abnormality, or a physician neglects to test for one, and the child is born with a severe and debilitating condition, the parents should consult with a wrongful birth attorney.

Here are a few typical circumstances that can be grounds for a wrongful birth lawsuit:

A failure to diagnose a condition in either of the birth parents that would likely cause the child to be born with a disability. A proper diagnosis would have led to contraception or lawful termination of the pregnancy.

A failure to advise the parents of the risks of certain genetic or inherited diseases based upon the genetic factors found in the birth parents or based upon the lab results.

A failure of a medical laboratory to conduct a test for a disease or genetic condition ordered by the doctor and the omission is not corrected, or the lab made an error, or the lab failed to report its findings.

A failure to properly monitor the pregnancy. A doctor may have missed an abnormality that was indicated on a sonogram or other test that in the practice of ordinary care he or she should have detected.

Complications during pregnancy such as bleeding during the first trimester can indicate a birth defect. A failure to conduct more tests and to fully inform the parent may be legally actionable.

Types of Diseases or Conditions That Are Detectible.

Down Syndrome

This is a condition in which there is an extra copy of the 21st chromosome. A mother who is over 35 or who has a family history of the syndrome should be tested. Down syndrome children have intellectual impairments and may suffer from genetic defects of the heart. They are at a heightened risk of developing a number of medical conditions. Their features are deformed and have a distinct and easily recognizable appearance.

Sickle Cell Anemia

An inherited disorder that is more common among African-Americans, it is a condition that can cause severe pain and damage to major organs. Parents can be tested prenatally to determine the chances of giving birth to a child with this condition.

Spina Bifida

Although there are no genetic screening tests for Spina Bifida, ultrasound testing can reasonably determine the chances of the child having this condition. It is a defect that affects the lumbar and sacral spine and leads to deformity or damage to the spine that can result in paralysis.

Tay-Sachs Disease

Jews of Eastern European descent, known as Ashkenazi Jews, are susceptible to having this condition, which is a mutation of the 15th chromosome. Some Canadians and Cajuns may also be affected. Children with this defect can develop loss of sight, hearing, suffer from seizures, and intellectual disabilities. The gene can usually be detected by genetic testing.

Cystic Fibrosis

A condition that is not uncommon to children born in the U.S. and Western Europe, it can cause problems in the digestive system, lungs, liver and pancreas because of abnormal mucous interfering with these functions. The life expectancy of a child born with CF is significantly shortened. Genetic screening tests can detect a carrier in one of the parents as well as tests conducted during the pregnancy.

Responsible Parties

A wrongful birth case is a category of medical negligence or malpractice. A physician that is responsible for your pregnancy is held to a certain standard of care. In New Jersey, that means that your doctor’s actions must adhere to the minimum standards of a reasonably competent physician practicing in the same medical community and possessing similar training and experience under similar conditions.

Your doctor also has a responsibility to inform you of any material risks that may result if you become pregnant or carry your baby to term. If you can prove that you would not have carried your child to term had these risks been fully disclosed to you, you may have a cause of action for wrongful birth.

Responsible parties may include the physician who failed to fully inform you of the risks of having a child born with certain genetic conditions, or who failed to order tests that a reasonable physician with similar training in your community would have ordered given the same or similar set of circumstances.

The doctor may also be held responsible for the actions of interns, residents, nurses or other physicians under his or her control who were negligent during your pregnancy.

The hospital that employed the physician may also be responsible for the actions of its employee through vicarious liability, or if it was negligent in the hiring of incompetent personnel, including physicians and nurses.

A laboratory that neglected to follow the physician’s orders to conduct certain tests, or failed to notify the physician of the results or misread them, may also be liable.


Caring for a child with a severe birth defect necessitates enormous expenditures for its health, treatment and education. If your child was born with a severe birth defect and your physician or other responsible party was found legally liable, you can be awarded compensation. Damages can include the extraordinary costs of raising a child with special needs, which can be quite exorbitant based upon the extent of the severity or disability. Lifetime care can include medical expenses and educational expenses for a child with special needs.

Each parent can also be awarded damages for their emotional distress.

What To Do If Your Child Is Born With a Birth Defect

If your child was born with a genetic condition such as the ones enumerated here, and you suspect or feel that you were not advised of this possibility or tested for it, you should immediately contact an attorney who is experienced in wrongful birth cases.

Medical negligence cases are difficult to prove. It takes a medical professional to interpret records and to testify about the standard of care applicable to your physician or laboratory that conducted the tests to determine if there was a breach of that care.

These cases must be brought within a certain time and responsible parties must often be found and notified. Your attorney must also abide by certain procedural rules applicable to wrongful birth and medical negligence cases. Only by consulting with a wrongful birth attorney can you be assured that your rights are protected and that your case is thoroughly investigated so that a reasonable and satisfactory resolution may be achieved.

If you, or someone you care for has delivered a child with a birth injury that occurred as a result of medical negligence, we want to hear from you.


Contact the Law Offices of Stephen S. Weinstein, P.C.
for your free personal consultation today.

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