I was born with severe disabilities. I am in constant pain. I need 24 hour care and my quality of life is miserable. There is no hope of my condition improving. My parents told me that their doctor failed to pick up on my condition during my ultrasound and that if they had known how much I would suffer as a result of my condition they would have spared me by undergoing an abortion. Can I sue the doctor that failed to pick up on my condition in the ultrasound for wrongful birth?
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Answer by Shamaila Khan, Kingsville 3012 VIC
- Claims like these are known as ‘wrongful life’ claims and are generally not successful.
- In a recent case a 24-year-old disabled woman sued the doctors that treated her mother during pregnancy after they negligently failed to pick up that the mother had the rubella virus.
- As a result the applicant was born with serious disabilities.
- In that case the application failed because the High Court of Australia did not consider the applicant’s life with disabilities to be ‘damage.’
- ‘Damage’ was interpreted to mean ‘worse off’ and the court found that there was no way to prove that the applicant would not have been ‘worse off’ had the negligence not occurred. If the doctor had warned her mother about the rubella an abortion would have been booked and the applicant would never have existed.
- The courts were not prepared to suggest that not existing at all is better than living with disabilities due to obvious policy implications.
- As a result of this decision wrongful life cases are generally not successful in Australia.
- You should speak to an experienced medical negligence lawyer to discuss your particular matter.