Wrongful Pregnancy Lawsuit

What Are Prenatal Torts?

Doug Mann

Last updated on July 25th, 2024

While medical malpractice claims have a variety of different causes, some occur more often than others. Among those are claims related to childbirth, including wrongful pregnancy and wrongful birth – these are typically referred to as prenatal torts.

Let’s start by looking at the earliest case from the Ohio Supreme Court authorizing such actions, and then we’ll turn to a summary of current law how it fits into Ohio medical malpractice law generally, and how to file a wrongful pregnancy lawsuit.

The Origins of Prenatal Ohio Tort Law

In September 1971, Veda Bowman gave birth to her fourth child. Her doctors advised her that any future pregnancies would be hazardous. So, she and her husband agreed that she should undergo a sterilization procedure called tubal ligation. The surgery was performed shortly after she gave birth.

Yet, mere months after the operation, Mrs. Bowman became pregnant again. In mid-1972, she gave birth to premature twins, one of whom suffered from various physical and mental impairments. In response, she and her husband sued the doctor who performed her surgery in what has come to be known as a wrongful pregnancy lawsuit. They won, but the doctor challenged her victory all the way to the Ohio Supreme Court.

The Bowman’s case was the first in a line of cases developing Ohio’s law regarding prenatal torts. Never before had the Ohio Supreme Court said that a person could sue after a failed sterilization procedure. In fact, in the early 20th century, courts in other states had rejected such claims on the grounds that the birth of a child was not a legal injury.

Today, ever since the Bowman’s success, the Ohio law on prenatal torts has become much better developed, a topic to which we now turn.

Prenatal Torts: Wrongful Pregnancy, Wrongful Birth, and Wrongful Life

The Ohio Supreme Court, following the lead of other courts around the country, divides prenatal torts into three categories: claims for wrongful pregnancy, wrongful birth, and wrongful life.

In a 1989 case, the Ohio Supreme Court summarized those three categories as follows:

• Wrongful pregnancy: “[A] suit filed by a parent for proximate damages arising from the birth of a child subsequent to a doctor’s failure to properly perform a sterilization procedure.”
• Wrongful birth: “[A] cause of action whereby parents, on their own behalf, seek to recover damages for the birth of an impaired child when the impairment was caused by the defendant’s failure to diagnose or discover a genetic defect . . . in time for the parent to obtain a eugenic abortion or to prevent pregnancy altogether.”
• Wrongful life: An action “brought by a child, on his own behalf, claiming damages due to the negligent failure of physicians to sterilize his parents.” This is the child’s counterpart to a wrongful pregnancy claim, except that the child is claiming that his or her very existence is a legal injury.

Ohio tort law permits claims that come within the first two categories, but not the third, which is why we’ve been ignoring it so far. As the Ohio Supreme Court has explained, recognizing wrongful life claims would require courts “to adjudicate that it would have been better [for the child] had she not been born,” which is a “moral, philosophical, and religious” determination, rather than a judicial one.

But whatever label is attached to such actions, the Ohio Supreme Court has made clear that wrongful pregnancy and wrongful birth claims are really just particular types of medical malpractice claims.

Medical Malpractice and Damages

As a quick refresher, medical malpractice occurs when a medical professional fails to meet the standard of care that the law requires of him or her, and that failure causes an injury to a patient.

Both wrongful pregnancy and wrongful birth claims follow that definition. In them, the plaintiff alleges that the doctor failed to meet the applicable standard of care (by, e.g., botching a sterilization operation or failing to diagnose a genetic abnormality), and that failure caused an injury to the plaintiff (e.g., the mother’s pain and suffering during the pregnancy and birth).

AN EXPERT TIP FROM DOUG MANN

Because prenatal tort lawsuits are really medical malpractice lawsuits, and because they are brought by the parents, not the child, they are subject to the ordinary rules that apply to medical malpractice lawsuits, including the statute of limitations.

However, there are some unique features to wrongful pregnancy and wrongful birth claims, particularly regarding what damages are available. In fact, even though the Ohio Supreme Court decided Bowman’s claim in 1976, it still took until 2006 for the Court to answer some of the most basic questions about damages in prenatal tort cases.

Specifically, some plaintiffs have tried to hold the defendant doctors liable for the costs of raising the child involved in a prenatal tort case. The Ohio Supreme Court has made clear that such damages are not available because the extent of any such damages would be too speculative. Instead, the parents can only recover for the damages from the pregnancy itself, which include such things as:

• Medical expenses
• Loss of consortium during the pregnancy and birth
• Emotional distress
• The mother lost wages for a reasonable length of time
• The mother’s pain and suffering during the pregnancy and birth

What is Wrongful Pregnancy?

Wrongful pregnancy, also known as wrongful conception, refers to a legal claim brought by parents when a medical professional’s negligence results in an unintended pregnancy. Typically, these cases arise from failed sterilization procedures where parents had taken steps to prevent future pregnancies based on their personal, financial, or health-related reasons.

The core of a wrongful pregnancy claim is that the healthcare provider or institution negligently made a mistake, leading to an unplanned pregnancy and the birth of a child. Unlike wrongful birth, which addresses the failure to inform parents of congenital disabilities that might have led them to terminate the pregnancy, wrongful pregnancy strictly involves negligence around sterilization procedures.

Elements of a Wrongful Pregnancy Claim

To successfully establish a wrongful pregnancy claim as a plaintiff, you must demonstrate that various elements exist. These include the following:

Duty of Care

Your doctor is obligated to provide you with care during sterilization. This means there was a relationship whereby the doctor was legally bound to perform a sterilization process. This relationship is established once the patient engages the provider for a sterilization procedure.

Breach of Standard of Care

It must be proven that the doctor or medical professional breached the standard of care expected in performing the sterilization procedure. A doctor violates their duty of care by performing the procedure improperly or if the pregnancy occurs mainly due to the plaintiff(s) trusting in the sterilization’s effectiveness.

Therefore, your lawyer will have to help you prove that the procedure was not carried out according to accepted medical practices and protocols.

Factual and probable causes

The plaintiff must link the breach of duty to the failure of the sterilization procedure. They must demonstrate that the pregnancy would not have occurred had the patient not depended on the procedure for pregnancy prevention administered by the health professional.

Actual Harm

Finally, the plaintiff must show that they suffered harm as a result of the unplanned pregnancy. Damages can involve damages such as physical, emotional, and financial burdens.

In What Cases Can I File a Lawsuit for Wrongful Pregnancy?

Wrongful pregnancy lawsuits are filed in scenarios where the parents claim they didn’t get the proper care and, as a result, ended up with a pregnancy they wanted to avoid. Here are some of the cases where you might consider filing a wrongful pregnancy lawsuit:

Failed Sterilization Procedures

If a doctor negligently performs a sterilization procedure, the affected individual or couple can file a wrongful pregnancy claim. These procedures may include the following:

• Vasectomy
• Tubal ligation
• Intrauterine device (IUD) or other devices

When these processes fail, they may lead to an unplanned pregnancy. It is not always possible to sue for an unintended pregnancy, as you must prove that medical professionals failed to meet their standard of care when performing the procedure.

Inadequate Follow-Up Care

Even if the initial procedure was performed correctly, improper follow-up care can also be grounds for a lawsuit. For example, not performing or incorrectly interpreting post-vasectomy sperm count tests or failing to confirm the success of the sterilization.

Misleading Information

If a healthcare provider provides misleading or incorrect information regarding the effectiveness or risks of a sterilization procedure, and it leads to an unplanned pregnancy, this could be grounds for a wrongful pregnancy claim.

Defective Medical Devices

In some cases, a lawsuit might be filed against the producer of a defective medical device used in the sterilization process. The plaintiff has to prove that the defect contributed to the failure of the procedure.

How Much Compensation Can I Get?

In Ohio, the court will determine the compensation to award a wrongful pregnancy lawsuit case based on various issues surrounding the case. Basically, these are the damages you may seek:

• Medical expenses: These include costs related to the pregnancy, childbirth, and any subsequent medical treatments required as a result of the failed sterilization.
• Emotional distress: Plaintiffs can claim damages for the emotional and psychological effects of an unplanned pregnancy, such as stress, anxiety, and any mental health issues arising from the situation.
• Loss of wages: If the unplanned pregnancy affects the plaintiff’s ability to work, either temporarily or permanently, they can seek compensation for lost wages and diminished earning capacity.
• Pain and suffering: Restitution for physical and emotional pain and suffering experienced due to pregnancy and childbirth can also be awarded.
• Cost of raising the child: In Ohio, the law allows for claims covering the cost of raising an unplanned child. This also includes extraordinary expenses associated with raising a child with special needs.

Your wrongful pregnancy lawyer will keenly assess the impact of medical malpractice to ensure that you seek adequate compensation. They will evaluate and document the relevant damages to help maximize the compensation received.

Importantly, your attorney will engage the defendants in your case to ensure you get a fair settlement. He may even seek additional evidence, such as engaging expert witnesses to give testimony on your case. This would ensure that you present a compelling claim that wins the damages you are seeking.

Is There a Limit to the Money I Can Receive?

Yes, Ohio limits the damages a plaintiff can receive for wrongful pregnancy to the costs of the pregnancy itself. They cannot seek damages for the costs of raising the child. This is because the child’s healthy birth is not viewed as an “injury” in the eyes of the law.

However, many damages can arise from a pregnancy that should have been prevented, and you deserve full compensation for these losses. Your attorney will consider many things, including:

• Medical costs
• Medical complications of the pregnancy (the plaintiff likely intended to prevent through sterilization)
• Lost income
• Non-economic damages

Your potential wrongful pregnancy case is a complicated matter. But don’t worry, there are medical malpractice lawyers who are well-versed in prenatal tort law in Ohio and will advise you based on your unique case.

Consultations are free, so you should never wait to discuss a potential wrongful pregnancy case with a Dayton medical malpractice lawyer near you.

Recovering After a Wrongful Pregnancy or Birth

Because wrongful pregnancy and wrongful birth are types of medical malpractice claims, successfully pursuing them requires working with a knowledgeable Ohio medical malpractice attorney. Such claims are almost always complex, involve litigating against an experienced and well-funded insurance company, and require the presentation of expert testimony.

If you or a loved one has been injured by medical malpractice, including a wrongful pregnancy or wrongful birth, contact the lawyers of Dyer, Garofalo, Mann & Schultz today for a free case review.