New Jersey Supreme Court Decided First Wrongful Birth Lawsuit

The first major wrongful-birth lawsuit involving a disabled child reached the New Jersey Supreme Court in 1966. In the case of Gleitman v. Cosgrove, one plaintiff was the child’s mother. She had contracted rubella (German measles) early in her pregnancy and asked her doctor whether this would affect her unborn child. He assured her that the child would be fine, despite the common belief that rubella early in pregnancy could cause birth defects. The child was, in fact, born with significant defects in sight, hearing, and speech.

The court recognized that the doctor had failed to warn the parents, and also recognized that the parents suffered emotional and financial strains as a result of the disabled child’s birth.

Nonetheless, the court ruled in favor of the doctor:

Examples of famous persons who have had great achievement despite physical defects come readily to mind, and many of us can think of examples close to home.. . .The sanctity of the single human life is the decisive factor in this suit in tort. Eugenic considerations are not controlling. We are not talking here about the breeding of prize cattle.

However, New Jersey courts now recognize a cause of action for wrongful birth as a result of medical negligence. New Jersey law recognizes that doctors have a duty to advise patients about the range of prenatal screening tests available, and to explain the risks of having a severely disabled child so that parents can make an informed choice about their options, including the option to terminate the pregnancy.

Examples of a medical provider’s negligence include:

  • Failure to take a genetic screening history of both parents
  • Failure to offer screening tests at the appropriate stage of the pregnancy
  • Failure to report screening results to the parents in a timely fashion
  • Misinterpreting screening results
  • Improperly performed ultrasound tests
  • Improperly performed amniocentesis

To recover on a wrongful birth claim, the parents must prove that the negligence of a doctor, medical lab, or other medical provider prevented them from knowing that there was a serious risk that the fetus had a birth defect or genetic disorder. The parents must also show that they would probably have ended the pregnancy if they had known about the undiagnosed condition.

Under New Jersey law, damages in a wrongful birth claim include compensation for the medical and other expenses related to the child’s illness or disability. Damages can also include compensation for the emotional injury to the parents, due to the lifelong challenges of caring for a disabled child.
If you or a family member have a disabled child and believe you may have a claim for medical malpractice, contact a New Jersey wrongful birth attorney at the Law Offices of Jeffrey S. Hasson, P.C.


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