The term “Wrongful Birth” in the context of a claim for damages refers to a type of medical negligence claim brought against a doctor, hospital or other health provider for negligent advice and treatment which deprives parents of the choice to avoid conception (in the case of failed sterilisation) or termination of the pregnancy where they would have done so had they known about the particular genetic abnormality affecting the foetus (such as fragile X syndrome). It must be remembered that the negligent or wrongful act is not the birth or the child’s right to exist, but the advice or treatment.
In all Australian states, parents have the right to sue for damages in relation to the economic losses they incur as the result of the pregnancy, the additional costs of caring for and rearing the child over and the above the costs of a normal child as the result of having a child with a disability, and for the pain and suffering associated with the pregnancy, confinement, birth and any nervous shock . The recoverable financial costs of caring for and rearing the child may include therapies and medical treatment, learning aides, occupational therapy, speech pathology, psychology and paediatric care.
No doubt there is consensus that the NDIS goes nowhere near meeting the full range of needs.
Parents may also have claims for the psychological effects of the unexpected birth of their baby with Fragile X, the massive demands of caring for a Fragile X child and the economic loss as a result of the demands of caring almost full-time for their children.
We have a number of cases which will be heard by Courts in SA and NSW later this year or early next which will decide important issues in these types of claims. These include:
- Whether the personal efforts of parents in the additional care for their children is compensable at law;
- When the law says that parents moral obligation to care for their child ends, and hence when their claim for damages ends.
I am firmly of the view that the care of a child with a disability does not end at 18 when the child becomes eligible for social security. The care is life long. I am also firmly of the view that the personal efforts of parents in the care of their children should be recognised at law in terms of compensation.
It goes without saying that parents who have a child with a disability feel precisely the same way as they would for a child without. The truth is that their lives are changed forever. In certain circumstances the law can help meet the costs of ensuring the child with a disability reaches their full potential.
Please feel free to contact me if you think that you received poor medical advice or were the victim of genetic testing errors. I’m happy to help in any way I can.