I was pregnant and went to have an ultrasound. I was told that my child was fine so I proceeded with the pregnancy. When my child was born she was born with severe physical and mental disabilities and will likely require 24 hour care for the rest of her life. While I do not wish any harm upon my daughter I know that if my doctor had detected the abnormalities during that ultrasound I would likely have terminated the pregnancy. Can I sue the doctor for negligence?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Shamaila Khan, Kingsville 3012 VIC
- Claims like these are known as wrongful birth claims. These have come to prominence in recent years due to the advent of new and improved forms of prenatal testing for genetic disorders as well as advanced contraceptive techniques.
- As it is a new and developing area of law it is difficult to say with any certainty whether a wrongful birth case is likely to succeed or not. What is known about them is that:
- it is possible to seek damages in wrongful birth claims to compensate for the cost of raising a child regardless of whether the child is healthy or disabled if the child’s existence was due to the negligence of a medical professional;
- generally the parents must testify that had the negligence not occurred they would not have planned to have had the child; and
- in NSW, QLD and SA damages are only available if the child is disabled.
- Damages for wrongful birth claims involving a healthy child and pure economic loss cannot be awarded.
- These elements are in addition to the ordinary elements that must be satisfied in a medical negligence claim.
- You need to check the relevant legislation in your state or territory as the rules are different in each jurisdiction.