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Wrongful Birth Lawsuits
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A wrongful birth lawsuit is when parents of a child with a genetic or congenital disability claim that the negligence of doctors or genetic counselors in failing to diagnose or warn them of the condition deprived them of the opportunity to terminate the pregnancy. In other words, they would have chosen an abortion had they known. These parents are seeking compensation for the expense of caring for a disabled child whom they wouldn’t have had if they were made aware of the disability during pregnancy.
Obviously, these cases are controversial. They involve difficult questions about the value of human life, some of the same issues that come up in abortion debates. You are basically saying that if you knew your child would have had a problem like cerebral palsy you would have not let them been born.
In Illinois, the courts allow parents to sue for wrongful birth. In order to be successful, parents must prove that the doctors were negligent in their failure to diagnose or counsel them on a birth defect, and that this negligence caused them to have the child (rather than choose abortion), and that they were harmed as a result. The “harm” is usually the financial burden of caring for a disabled child. These costs depend on the severity of the disability and can include medical bills, home care, education and other expenses of managing a child’s condition.
In Illinois, parents can recover for expenses of caring for a disabled child even after they become an adult (beyond the age of 18). In the past, parents could only recover the costs of caring for a child while they were a minor. Recently, however, the courts determined that this rule denied parents from being fully compensated.
Sometimes parents in this situation also sue for emotional distress. Emotional distress lawsuits can be difficult to prove, and in Illinois they are limited to specific situations. In order to sue for emotional distress in Illinois, you have to be in what they call the “zone of danger.” Basically, you have to prove that you were physically endangered by the defendant’s negligence. For example, you would have to prove that the doctor’s negligence (causing you to have a disabled child) put you in physical danger. The second step is showing that you suffered physical injury or illness as a result of the emotional distress of being in physical danger. This sounds confusing because it is. The bottom line is that it is difficult to win an emotional distress lawsuit, especially in a wrongful birth situation.
There is a similar type of lawsuit called “wrongful life,” in which the disabled child, rather than the parents, sues the doctor or genetic counselor. Wrongful life lawsuits are not recognized in Illinois. The Illinois courts have decided that the idea behind these lawsuits – that the disabled person is worse-off by having been born – contradicts the public policy of the State of Illinois to preserve and protect human life. In other words, the courts do not feel they can make the determination that someone would have been better off had they not been born at all.
There are not too many lawyers that have had success with these lawsuits due to the controversial, complex and rare nature of these cases. If you would like our help in finding an attorney that has experienced this success or if you just have general questions, please contact us at anytime. All inquiries are free and confidential.