Prenatal Misdiagnosis and Wrongful Birth

Serving New Jersey and the surround metropolitan area

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The joy of having a baby can quickly turn to anxiety and despair when parents learn that their child has a significant birth defect or a genetic disease or disorder that will create permanent disability and require life-long care.Often, the physical and financial hardships endured by parents in these situations is overshadowed by the emotional pain they experience as they witness their child's suffering, or imagine the pain and hardship the child will face in the future.

In many instances, birth defects or genetic diseases or disorders can be easily identified early enough during the mother's pregnancy to allow the parents an opportunity to choose whether or not to allow the pregnancy to continue. In New Jersey, if a birth defect or genetic disease is not identified during pregnancy simply because a medical care provider was negligent, a wrongful birth claim can be made.

Standards of Care for prenatal diagnosis of birth defects and genetic diseases

It is widely accepted throughout the United States that obstetricians must offer certain prenatal screening tests to every pregnant patient, regardless of age or family history, including but not limited to:

Genetic counseling and screening tests for carrier status

A careful history should be taken from all pregnant women seeking to identify risk factors for genetic disorders. Information should include the health status and presence of genetic disorders or carrier status of both parents and relatives, as well as inquiry into ethic, religious and racial background. Blood tests should be offered for the following genetic disorders depending on whether or not either parent is at increased risk of carrier status:

Cystic Fibrosis (all parents)

Canavans Disease (Jewish status)

Sickle Cell Disease (African American status)

Tay-Sachs Disease (Jewish or Cajun status)

Thallasemias (Mediterranean or Southeast Asian descent)

Nuchal translucency or Nuchal fold scan

Between 11 and 14 weeks, an Ultrasound examination which measures the clear space (translucent) at the back of the neck (nuchal) of the developing fetus can be helpful in detecting possible Down syndrome. This test in combination with a blood test from the mother can help determine whether further testing should be performed.

Quadruple screen

At 16 to 18 weeks gestation, blood is drawn from the mother and analyzed for the presence of four substances: AFP (alpha-fetoprotein), hCG (human chonionic gonadotropin), uE3 (estriol) and inhibin A. Levels that are abnormally high or low are associated with an increased risk of Down syndrome or spina bifida and other neural tube defects. It is important that the medical care providers properly assess fetal age and maternal weight in determining whether or not the results are normal. If the quadruple screen result is abnormal, patients must be offered further testing, such as amniocentesis or targeted ultrasound, so that a diagnosis can be made with certainty.

Ultrasound

At 16 to 22 weeks gestation, a standard ultrasound examination is performed to survey the fetal anatomy. At that time, the fetal head (brain) and neck, heart, abdomen (stomach, kidneys, bladder), spine and limbs are carefully examined for evidence of abnormalities. It is important that this examination be performed by a qualified, well trained medical professional who is familiar with accepted standards of care. Evidence of a wide range of fetal abnormalities can often be detected with a competent and thorough examination, including but not limited to major heart and brain defects, spina bifida and other neural tube defects, Down syndrome, and missing organs and bones.

Your rights in the event of a Prenatal Misdiagnosis ( Wrongful Birth )

In order to recover in such a claim, the parents must prove that a medical provider's negligence prevented them from learning that there was an increased risk that the fetus had a significant birth defect or genetic condition. They must also establish that they would likely have terminated the pregnancy had they been advised of the problem. In doing so, they are not in any way calling into question their love and devotion to their child that relationship has already been established and will continue forever. Instead, they are merely acknowledging that if told of the defect or disease during the pregnancy, they would have likely chosen not to undertake the financial and emotional hardships involved in parenting a severely disabled child with a lifelong disability. Because the child would not likely have been born if the medical provider was not negligent, these claims are often referred to as wrongful birth claims.

The New Jersey Supreme Court has held that if a wrongful birth claim is established, the negligent medical provider must provide compensation for the special medical expenses and other extraordinary expenses related to the child's condition over the child's lifetime. In addition, compensation must be provided for the emotional injury and anguish suffered by the parents in being compelled to take on the lifetime tasks and burdens of parenting a disabled child.

Common Mistakes made in prenatal misdiagnosis, wrongful birth cases:

While every potential prenatal misdiagnosis, wrongful birth claim requires a thorough investigation as to whether or not a medical provider was negligent, mistakes in such cases include:

• Failure to take a competent and thorough genetic screening history of both parents
• Failure to offer appropriate testing at the appropriate gestational age
• Failure to offer quadruple screen (or any AFP screening) at the appropriate gestational age
• Improper laboratory interpretation of prenatal screening testing
• Improper interpretation of prenatal screening results by obstetrical care providers
• Misplaced or overlooked prenatal screening results by obstetrical care providers
• Improperly dated pregnancies
• Inadequately performed or interpreted standard ultrasound to survey fetal anatomy

How We Can Help

Unfortunately, many children with birth defects or genetic disorders and diseases will require a lifetime of expensive medical care.. Many will need to be followed by several different types of specialists and participate in ongoing physical and occupational therapy. It is obviously in such children's interests to be in a position to benefit from the very best and most advanced treatment available. There may be a significant difference in the treatment and services that private medical insurance or such programs as Medicaid will cover, and the most desirable state of the art treatment. If your child has a birth defect(s) or genetic disorder or disease that you suspect may have been detectable during pregnancy, getting the compensation that you deserve may be the only way to provide the care and services needed to maximize your child's potential.

Collectively, New Jersey medical malpractice lawyers Michael L. Weiss, Esq. and Robert E. Paarz, Esq. have presented over 30 prenatal misdiagnosis, wrongful birth type cases to juries, and have helped many families obtain the financial assistance needed to lessen or eliminate the financial burden caused by birth defects and genetic disorders. They are committed to using their knowledge and experience to help families that have been negligently deprived of their sconstitutional right to choose whether to continue a pregnancy involving an affected fetus obtain fair compensation. If you would like to discuss the possibility of pursuing a claim, please contact Weiss & Paarz, P.C., today.

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