Wrongful
Birth Medical Malpractice
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.
SERUM SCREENING
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:
http://www.marchofdimes.com/professionals/14332_1167.asp.
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:
• Missed diagnosis of Down's Syndrome
• Spina Bifida
• Wolf-Hirschhorn Syndrome (a rare chromosome defect)
• Thalassemia
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:
http://www.njatty.com/articles/cases/dmd05.htm
http://www.njatty.com/articles/cases/dmd04.htm
http://www.njatty.com/articles/medmal/WrongfulBirth07.htm
http://www.njatty.com/articles/medmal/WrongfulBirthSpring06.htm
http://www.njatty.com/articles/medmal/ddsm04.html
http://www.njatty.com/articles/medmal/ddsm03.html
http://www.njatty.com/articles/medmal/ddsm03b.html
http://www.njatty.com/articles/medmal/ddsm03c.html
http://www.njatty.com/articles/medmal/ddsp03b.html
http://www.njatty.com/articles/medmal/ddwn02c.html
http://www.njatty.com/articles/medmal/ddsp00a.html
http://www.njatty.com/articles/medmal/ddsp95.html
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.
Main
|| Free Legal Tips || About
Us || List of Attorneys ||
News Verdicts/Settlements ||
Directions || Links
|| Contact Us
Copyright © 2001-2007 by Blume
Goldfaden Berkowitz Donnelly Fried & Forte, Chatham, NJ.
All rights reserved. Click
here to read important DISCLAIMER which applies
to our web site.
