Wednesday, 29 February 2012 15:09
Recent advances in genetic testing have created new legal quandaries involving liability for negligent genetic testing or other medical care that leads to the birth of a severely handicapped child. The number of these cases will continue to grow because the number of prenatal tests has increased exponentially from 100 to 1000 between 1993 and 2003. Maryland medical malpractice law permits compensation to parents for “wrongful life” where negligent genetic testing or medical care result in the birth of a child that the parents would otherwise have aborted. A Maryland medical malpractice attorney can assist parents in seeking compensation for the often extraordinary economic cost of rearing a severely disabled or handicapped child.
While the majority of states permit parents to recover for “wrongful life,” the Maryland Supreme Court has been particularly strong in its support of such claims. The state’s highest court has stated that “[W]hen prospective parents, relying on the negligent act or omission of a health care professional, elect to continue a pregnancy that they otherwise would have lawfully terminated and, as a result, are burdened with the cost and expense of raising a child with a serious genetic or other physical or mental defect, they have been injured and have a right to seek damages for that injury form the person whose negligence led to the injury. That right is a matter of important public policy in this state.” The Maryland Supreme Court indicated that where there was a question in a case as to which state’s law should apply to a case, Maryland public policy would dictate applying Maryland law if the law of the other state did not recognize a “wrongful birth” claim.
Maryland medical malpractice law also recognizes related claims for “wrongful pregnancy” or “wrongful conception.” A wrongful pregnancy case involves the birth of a healthy child after a failed sterilization procedure or other negligence by a health care provider. A Maryland medical malpractice attorney can seek compensation on behalf of parents for the cost incurred in having to raise a healthy child that was not planned for nor wanted. Courts in many states have recognized these claims because the cost associated with raising a healthy child is easily quantified.
Maryland medical malpractice law also follows the majority of states in choosing not to recognize “wrongful life” cases brought by a child based on the proposition that the child would have preferred not to have been born at all then be born into a life of suffering. The majority of states including Maryland do not recognize these claims because of the difficulty of comparing impaired existence to non-existence. Courts in Maryland and the majority of states do not recognize such claims because it would be difficult for juries who have no experience with nothingness to say that non-existence would be preferable to an impaired existence.
The cost incurred by parents faced with a wrongful birth or wrongful pregnancy can be overwhelming. If you need a Maryland medical malpractice attorney to assist you in seeking compensation for these staggering costs, click here.