Risk Management Tools & Resources

 


Wrongful Birth and Wrongful Life Allegations: Overview and Risk Mitigation Strategies

Wrongful Birth and Wrongful Life Allegations: Overview and Risk Mitigation Strategies

Overview

In recent years, MedPro has noted an uptick in malpractice cases related to wrongful birth and wrongful life. Although these types of cases are still uncommon, when they do occur, settlements or judgments can be in the millions of dollars.

A wrongful birth claim is a case in which parents sue a healthcare provider because a child is born with significant congenital defects/disabilities. These defects/disabilities are not the result of the care provided; rather, they are inherent in the child’s genetic makeup. Examples include Down syndrome, cystic fibrosis, spina bifida, sickle cell anemia, and Tay-Sachs disease. The parents typically allege that, had they known about the real possibility of delivering a child with defects/disabilities, they would have terminated the pregnancy.

A Note About Testing

Allegations related to testing — such as failure to test, inaccurate interpretation of test results, or failure to appropriately follow up on ordered tests — occur in about 1 in 10 obstetric malpractice cases.1 The outcomes in these cases can result in settlements or judgments totaling millions of dollars, as noted above.

Continuing advances in genetic testing further complicate an already complex situation. With the availability of DNA sequencing tests, providers must now be ready to offer genetic testing and provide (or refer patients for) genetic counseling.

Damages in these cases center on the extraordinary expenses to care for the child as well as the emotional distress that the parents suffer as a result of having a child with a severe condition. Typically, the parents allege that they were deprived of information that would have resulted in their decision to terminate the pregnancy.

Wrongful life claims are slightly different in that they are brought on behalf of the child who is born with a severe defect/disability. These claims seek damages for medical care, special education, and other special needs required as a result of the child’s condition.

Note: Not all states recognize prenatal tort claims, so providers should be aware of legal statutes and case law in the states in which they practice. Additionally, in July 2022, the U.S. Supreme Court overturned Roe v. Wade, which many legal experts consider fundamental to establishing the cause of action for prenatal tort claims. As such, the future of these claims is unknown, and providers should stay abreast of the changing legal landscape.2

Case Examples

In one case, MedPro insureds were sued because the providers failed to promptly communicate the results of prenatal testing that revealed birth defects. As a result of the defects, the child was profoundly disabled. The mother asserted that, had she known of these defects sooner, she would have terminated the pregnancy.

In this case, correct testing was done, accurately interpreted, and appropriately documented by treating physicians and midwives. However, the providers did not communicate these findings to the mother in a timely manner. The providers recalled discussing the defects with the mother and documenting the conversation; however, the discussion took place late in the pregnancy, and the mother declined a partial birth abortion.

The following general scenarios illustrate other circumstances that might lead to wrongful birth/wrongful life cases. None of the situations described reflect a specific case.

  • Situation 1: An obstetrician refers a patient to a maternal-fetal medicine (MFM) specialist who recommends further testing and possibly genetic counseling too. The specialist’s recommendations are not carried out. The obstetrician recalls discussing the recommendations with the patient, who refused them. Documentation in the health record does not reflect this discussion or the patient’s decision. The patient does not remember any discussions regarding the MFM specialist’s recommendations.
  • Situation 2: An obstetrician orders genetic testing for a patient, but the testing is not completed due to either a lab failure or patient failure to follow through. The test tracking process in the obstetrician’s practice has gaps; thus, no follow up with the lab and/or patient occurs.
  • Situation 3: An obstetrician notes a possible abnormality and sends a pregnant patient for further testing. The testing is done, but the testing provider (lab or radiology) misinterprets the results. The initial abnormality continues but the obstetrician does not pursue it any further, having been reassured by the initial test results.
  • Situation 4: An obstetrician orders genetic, ultrasound, or radiologic testing but does not specify any specific abnormality or area of concern. The testing provider does the test; however, because the test does not look for specific abnormalities, the provider notes that the test results are normal.
  • Situation 5: Prenatal testing reveals an abnormality, which the treating obstetrician documents. However, no follow-up testing or counseling is ordered.

Risk Mitigation Strategies

As medical technologies and techniques advance, obstetric providers should remain vigilant about emerging risks and implement strategies to reduce liability exposure. The following recommendations might be helpful in mitigating risks associated with wrongful birth and wrongful life allegations:

  • Stay current on genetic testing developments. As genetic testing becomes more sophisticated and readily available, remain up to date with knowledge about these advances. In conjunction with your practice manager, regularly review and implement appropriate changes to in-office processes. Additionally, develop standardized guidelines for all patients and for patients in certain populations. Various experts and professional organizations, such as the American College of Obstetricians and Gynecologists, offer testing recommendations.
  • Improve testing and referral protocols. Malpractice case data show that ordering, tracking, and following up on tests and referrals are areas of persistent risk. Timeliness in these processes is of the upmost importance. Assess your protocols to identify any areas for improvement. Ensure accurate communication between obstetricians and other involved healthcare professionals (e.g., MFM specialists and sonographers), and clearly delineate each provider’s accountabilities. If a specialist notes the need for additional testing immediately or later in a patient’s pregnancy, determine who will order the tests.
  • Promote a team-based approach and culture of safety. Use all members of the office team to make sure tests and referrals are scheduled, completed, received, reviewed, and acted on. Give all team members the right and responsibility to note any possible problems and communicate them to the managing physician. Encourage patients to follow up on test results if they don’t receive information in a specified timeframe.
  • Conduct informed consent discussions. Prior to ordering any genetic testing, discuss the benefits, risks, and limitations of the testing with the patient in a clear, objective, and nonjudgmental manner. Schedule sufficient time for discussion so the patient can understand the information provided and ask questions. Documenting these discussions, along with the patient’s wishes and decisions, is a critical component of informed consent. Additionally, this documentation may prove crucial in the defense of a malpractice case because the recollections of the patient and the physician often differ after the fact.
  • Document informed refusal. If a patient refuses any suggested testing or referral, document the decision in the health record as well as any discussions related to potential outcomes and any patient education efforts. Consider having the patient sign an informed refusal document, and maintain that document in the health record.
  • Don’t rely on secondhand information. If testing is necessary for the patient’s partner (e.g., in relation to Tay-Sachs disease), and the partner wants to go elsewhere for the testing or indicates that the test has already occurred, ask to see the actual results rather than relying on secondhand information from the patient, the partner, or family members. If the actual results are unavailable, consider requesting that the partner have the test(s) done again. If the partner refuses, document the refusal in the patient’s health record.
  • Provide verbal and written confirmation. If you perform tests and/or interpret test results, make sure to always verbally notify the ordering physician of any concerning results, and document the conversation. Further, ensure that written test results are provided in an appropriate timeframe.
  • Document your testing rationale. For every pregnant patient that you see, document the need, or lack thereof, for any testing and/or referral to MFM specialists.

Resources

Endnotes

1 MedPro Group and MLMIC cases opened 2013–2022.

2 Diamond, A. K. (2023). The impact of post-Dobbs abortion bans on prenatal tort claims. Michigan Law Review, 122(2), 377–418. Retrieved from https://repository.law.umich.edu/mlr/vol122/iss2/5/; Statz-Geary, N. (2024). Making it right: Preserving wrongful birth after Dobbs. Columbia Journal of Law & Social Problems, 57(1), 115-159. Retrieved from https://jlsp.law.columbia.edu/2024/02/19/making-it-right-preserving-wrongful-birth-after-dobbs/

Legal Disclaimers