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When a child is born with a severe birth defect


When a child is born with a severe birth defect that is genetically based and could have been discovered through fetal testing, there can be civil remedies to assist the family in some situations. If the fetal testing has been performed and returned normal, but the child was born with genetic problems, then the parents of the child might have the basis for an action brought for wrongful life. In one case that was sent to the court of appeals for the state of New York on November 13, 1984, a child who was born with Down’s Syndrome filed a suit to recover damages from the hospital and doctors who were responsible for her mother’s prenatal care.

She contends that her mother ordered the amniocentesis test during her pregnancy to determine if she would have a fetus with any genetic abnormalities. The test results that were given to her mother said that her mother would have a normal, healthy, baby boy. However, her mother gave birth to a daughter with severe Down’s Syndrome. She contends that if her mother had been properly informed by the hospital that she was carrying a child with Down’s Syndrome that she would have had the child aborted. However, since the test results that were given to her mother were totally incorrect, her mother did not have an abortion and she was born.

She seeks monetary compensation to assist her with the extraordinary expenses that she will have in her lifetime for special care. The court in New York City reviewed her application and determined that an action for wrongful life is difficult to conclude. Wrongful life in a case such as this one, where an amniocentesis test was requested and performed, could indicate to a jury that the mother upon information that the child was genetically abnormal would have aborted the pregnancy. If her mother, or her father had filed a wrongful action within six months of her birth, it is likely that they would have been granted the motion to proceed. The option to abort a child that is not genetically normal is one that is recognized by the State of New York and was an option that was likely in this particular case. The fact that the wrong test results were presented to this child’s mother is obvious in that the baby born to this woman was neither a male nor free of genetic abnormalities. There was clearly fault that could be applied to the medical practitioners in this case if the parents of the child had filed the suit early in her life.

However, the court ruled that there is no ability of a child to file an action for wrongful life. Because a child is born in an impaired state, does not imply that that child does not have a right to live. If the court was to grant a claim from a live child on wrongful life, it would be making a statement that that child does not deserve to live. The court refuses to make such a contention and finds that it is impossible for a child to sue for their own wrongful life. This case opens the door for much speculation about the validity of the handling of the test results. If this woman received the test results for a normal male child, who obtained the test results that were intended for her own pregnancy. What decision was made by the family that was expecting a daughter with Down’s Syndrome when they were actually pregnant with a normal healthy boy? Was that child aborted? The responsibility that the hospital in Westchester bears when performing tests that are the basis for life and death decisions is enormous. In this case, the hospital mistake allowed this little girl to face a life in a world that offered her mother the option to abort her while she was just a fetus.

At Stephen Bilkis & Associates a medical malpractice lawyer, is available in convenient offices located throughout New York and the Metropolitan area to respond to your call. The birth injury Attorneys at Stephen Bilkis & Associates can provide you with good advice in an impossible situation.

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