Certified by the Supreme Court of New Jersey as a Civil Trial Attorney
Michael L. Weiss
Robert E. Paarz
Medical Malpractice Attorneys Serving New Jersey
Down syndrome is a genetic disorder that includes a combination of birth defects. Persons with Down syndrome have some degree of mental retardation and characteristic facial features. Often, heart defects and other problems are present. It is one of the most common genetic birth defects, affecting approximately 1 in 800 babies. Chromosomes are the structures in cells that contain the genes. Down syndrome is caused by extra genetic material from chromosome 21. Affected persons have two normal copies of number 21 chromosomes, plus extra chromosome number 21 material attached to another chromosome. For that reason, Down syndrome is sometimes referred to as Trisomy 21.
Due to medical advances over the last 25 years, it is often possible to discover during early pregnancy whether or not the fetus is affected with Down syndrome. This can allow parents the opportunity to choose whether or not to continue with the pregnancy.
Standards of Care for prenatal diagnosis of Down syndrome
It is widely accepted throughout the United States that obstetricians must now offer or discuss the availability of certain prenatal screening tests for Down syndrome with every pregnant patient, regardless of age or family history, which can be used alone or in combination:
Nuchal Translucency or Nuchal Fold Scan
Between 11 and 13 weeks, an Ultrasound examination measures the fluid that accumulates in the back of the neck of the fetus, just under the skin. There is a strong association between the thickening of the neck in this area and the risk of Down syndrome. This test in combination with a blood test in the first trimester can be highly effective in detecting an affected fetus.
At 16 to 18 weeks gestation, blood is drawn from the mother and analyzed for the presence of four substances: AFP (alpha-fetoprotein), hCG (human chronionic gonadotropin), UE3 (estriol) and inhibin A. Levels that are abnormal are associated with an increased risk of Down syndrome and certain other disorders. If the quadruple screen result is abnormal, patients must be offered further testing, such as amniocentesis or targeted ultrasound, so that a diagnosis can be made with certainty.
At 16 to 22 weeks gestation, a standard ultrasound examination is performed to survey the fetal anatomy. At that time, the fetal head (brain) and neck, heart, abdomen (stomach, kidneys, bladder), spine and limbs are carefully examined for evidence of abnormalities. It is important that this examination be performed by a qualified, well trained medical professional who is familiar with accepted standards of care. Evidence of a wide range of fetal abnormalities can often be detected with a competent and thorough examination, including but not limited to findings associated with Down syndrome.
A thin needle is inserted to get a small sample of amniotic fluid, which surrounds the fetus in the womb. The fluid is then analyzed for genetic abnormalities, including Down syndrome. While this procedure does carry some risk of miscarriage, with the use of modern methods, this risk has been greatly reduced.
Chorionic Villus Sampling (CVS)
A small piece of placental tissue (chorionic villi) is taken from the uterus during early pregnancy. The tissue is then analyzed for genetic abnormalities, including Down syndrome. The procedure is considered slightly riskier than amniocentesis, however, it has the advantage of being able to be performed earlier in pregnancy.
Your rights in the event of a Prenatal Misdiagnosis (Wrongful Birth)
In order to recover, parents must prove that a medical providers negligence prevented them from learning that there was an increased risk that the fetus had a significant birth defect or genetic condition. They must also establish that they would likely have terminated the pregnancy had they been advised of the problem. In doing so, they are not in any way calling into question their love and devotion to their child that relationship has already been established and will continue forever. Instead, they are merely acknowledging that if told of the defect or disease during the pregnancy, they would have likely chosen not to undertake the financial and emotional hardships involved in parenting a severely disabled child with a lifelong disability. Because the child would not likely have been born if the medical provider was not negligent, these claims are often referred to as wrongful birth claims.
The New Jersey Supreme Court has held that if a wrongful birth claim is established, the negligent medical provider must provide compensation for the special medical expenses and other extraordinary expenses related to the childs condition over the childs lifetime. In addition, compensation must be provided for the emotional injury and anguish suffered by the parents in being compelled to take on the lifetime tasks and burdens of parenting a disabled child.
Common Mistakes made in prenatal misdiagnosis of Down syndrome cases:
Prenatal misdiagnosis claims involving a Down syndrome child require a thorough investigation as to whether or not a medical provider was negligent. Mistakes in such cases include but are not limited to:
- Failure to take a competent and thorough genetic screening history of both parents
- Failure to discuss the availability of appropriate testing at the appropriate gestational age
- Failure to offer quadruple screen (or any AFP screening) at the appropriate gestational age
- Improper laboratory interpretation of prenatal screening testing
- Improper interpretation of prenatal screening results by obstetrical care providers
- Misplaced or overlooked prenatal screening results by obstetrical care providers
- Improperly dated pregnancies
- Inadequately performed or interpreted standard ultrasound to survey fetal anatomy
How We Can Help
Unfortunately, Down Syndrome children will typically require a lifetime of special care and education. It is obviously in such children's interests to be in a position to benefit from the very best and most advanced treatment and educational modalities available. There may be a significant difference in the treatment and services that private medical insurance, a public school system, or such programs as Medicaid will cover, and the most desirable state of the art treatment. If your child has Down syndrome, and you did not learn of this diagnosis in time to exercise a choice as to whether to continue the pregnancy, you may be entitled to compensation. Proceeding with a claim may be the only way to ensure your child has the financial resources to access the best available care.
Collectively, New Jersey medical malpractice lawyers Michael L. Weiss, Esq. and Robert E. Paarz, Esq. have presented several Down syndrome prenatal misdiagnosis cases to juries, and have helped many families obtain the financial assistance needed to lessen or eliminate the financial burden caused by Down syndrome and other genetic disorders. They are committed to using their knowledge and experience to help families that have been negligently deprived of their constitutional right to choose whether to continue a pregnancy involving an affected fetus obtain fair compensation.
If you would like to discuss the possibility of pursuing a claim, please contact Down syndrome attorneys at Weiss & Paarz, P.C., today.