New Jersey Wrongful Birth Medical Malpractice Attorneys
New Jersey law has recognized that physicians have a duty to explain the risks of having a baby with profound birth defects and to inform parents of available screening tests so that they can make an informed reproductive choice. There are advances made in prenatal screening for birth defects almost every year.
However, most of the testing discussed presently, was available over the last 20 years in one form or another. Therefore, failure to provide proper information and testing may mean your doctor was negligent, and, you and your child may have a wrongful birth claim.
We offer the following general outline with some internet links to help make our clients aware of some prenatal testing options, which will help provide you with freedom of reproductive choice.
CARRIER BLOOD SCREENING
Carrier blood screening tests for gene defects, which are more common in different ethnic groups, should now be offered by obstetricians before conception. That way, couples can know if they are both carriers of genes that cause:
• Sickle cell anemia (primarily African-Americans)
• Thalassemia (Asian and Mediterranean races)
• Tay Sachs, Canavan’s Disease and a few rarer conditions (Ashkenazi Jews)
• Cystic Fibrosis (Caucasians and Ashkenazi Jews)
There are many other carrier based diseases, such as Fragile X Syndrome, where a positive family history of unexplained mental illness in either parent also requires screening. If both parents are found to be carriers, then 25% of children conceived will inherit this serious genetic disease, and couples can chose not to conceive or only conceive by IVF (in vitro fertilization) which allows for selection of non-affected embryos. For more information with regard to “carrier screening” please log on to: http://www.babycenter.com/refcap/pregnancy/prenatalhealth/1453030.html
If it was not tested before pregnancy, then an expectant mother’s blood should be tested to see, very early in the pregnancy, if she is a carrier of the referenced genetic conditions. If she is positive, then the father’s blood can be tested, and further diagnostic studies, such as amniocentesis or chorionic villi sampling can then determine whether that pregnancy is afflicted with a genetic defect.
At 16-18 weeks of pregnancy, all mothers must be offered blood test screening of levels of certain proteins in what is called AFP screening (alpha fetoprotein); now also known as the triple or quad screen. Low levels indicate a greater risk of Down Syndrome or other chromosome defects, while abnormally high levels are indicative of an increased risk of spina bifida and other neural tube defects. For more information with regard to serum screening, please log on to: http://www.marchofdimes.com/professionals/14332_1166.asp
SECOND TRIMESTER ULTRASOUND
Pregnant patients must also be offered a second-trimester ultrasound study of fetal anatomy between 16-20 weeks of pregnancy. This noninvasive diagnostic study can find a wide range of serious anatomical defects of the brain, heart or elsewhere, which are most often otherwise undetectable. For more information with regard to ultrasound studies, please log on to: http://www.babycenter.com/refcap/pregnancy/prenatalhealth/329.html, and:
INVASIVE PRENATAL DIAGNOSIS BY CHORIONIC VILLI SAMPLING OR AMNIOCENTESIS FOR OLDER PREGNANT MOTHERS
Prior to 2007, standard obstetric practice was to recommend for mothers over age 35, one of these two more invasive prenatal diagnostic tests; which do carry a small risk of miscarriage. Since the prevalence of birth defects increases with maternal age, it was previously thought that, commencing at age 35, the risks of having a major birth defect became greater than the risk of having a miscarriage from the test. However, in 2007, a comprehensive study found there was only a 1 in 1600 miscarriage rate associated with these tests, and that means they should be offered to mothers over 30. For more information, please log on to: http://www.msnbc.msn.com/id/16419323
NUCHAL FOLD THICKENING
Since the mid-1980s it was known that a thickened fold of skin around the neck of a fetus, called a nuchal fold, seen in a second trimester ultrasound indicated that the fetus was at a significantly increased risk of having Down Syndrome. With medical and technological advancements in 2007, it was also recognized that earlier first-trimester screening combining blood tests with a simple ultrasound exam, called a “nuchal translucency test” (to measure the thickness of the tissue at the back of the fetal neck), allows an earlier risk calculation for Down's Syndrome for women of all ages. Ultrasound tests are less invasive than amniocentesis, and are now widely available; please log on to: http://www.msnbc.msn.com/id/16419323
LIABILITY FOR NEGLIGENT PRENATAL SCREENING
When a child is born with serious brain damage, paralyzed or with a serious disease that could have been detected with contemporary prenatal screening, the parents may have a right to file a wrongful birth lawsuit. Standard prenatal care requires that your obstetrician educate and counsel you concerning all of these screening procedures. If a birth defect is detected, then parents can choose to terminate the pregnancy, sparing the family a lifetime of disability and suffering. Therefore, the law has recognized that if sub-standard obstetrical or radiological care deprives prospective parents of that choice, then negligent prenatal healthcare providers are responsible for the parents’ emotional distress, and, the substantial lifetime medical and other care costs associated with the child’s birth defects.
Our firm has had 20 years of experience in representing hundreds of parents and children who were deprived of proper prenatal diagnosis and reproductive choice. Our partner, Dennis Donnelly, is one of the few legal specialists in the country in this area of law (“wrongful birth”). In addition, he is the only attorney in New Jersey to have successfully tried to verdict five separate cases involving a wrongful birth. He also successfully tried a New York state case to verdict, which later became the subject of a New York Times feature article (.pdf opens in seperate window). The 6 referenced verdicts involved:
Among the birth defects which can be detected via prenatal screening are: Spina Bifida, Sickle Cell Anemia, Thalassemia (also known as Mediterranean or Cooley’s Anemia), Tay Sachs and Canavan’s Disease, Down Syndrome, neural tube defects, Dandy Walker Syndrome, and many other rare chromosomal and anatomical birth defects.
Click on any of the following links to read more about the wrongful birth cases which Dennis has handled:
Blume Goldfaden has also developed a substantial library of medical texts, articles and other resources with regard to prenatal diagnosis. Partner Dennis Donnelly, is so conversant with prenatal screening standards, that he has been invited to give continuing medical education lectures to medical residents and practicing obstetricians on how to properly screen pregnancies for birth defects.
Mr. Donnelly is a Certified Civil Trial Attorney, and is available to speak with you regarding any potential wrongful birth matter.