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
The joy of having a baby can quickly turn to anxiety and despair when parents learn that their child has a significant birth defect or a genetic disease or disorder that will create permanent disability and require life-long care.Often, the physical and financial hardships endured by parents in these situations is overshadowed by the emotional pain they experience as they witness their child's suffering, or imagine the pain and hardship the child will face in the future.
In many instances, birth defects or genetic diseases or disorders can be easily identified early enough during the mother's pregnancy to allow the parents an opportunity to choose whether or not to allow the pregnancy to continue. In New Jersey, if a birth defect or genetic disease is not identified during pregnancy simply because a medical care provider was negligent, a wrongful birth claim can be made.
Standards of Care for prenatal diagnosis of birth defects and genetic diseases
It is widely accepted throughout the United States that obstetricians must offer certain prenatal screening tests to every pregnant patient, regardless of family history or age, including but not limited to:
Genetic counseling and screening tests for carrier status
A careful history should be taken from all pregnant women seeking to identify risk factors for genetic disorders. Information should include the health status and presence of genetic disorders or carrier status of both parents and relatives, as well as inquiry into ethic, religious and racial background. Blood tests should be offered for the following genetic disorders depending on whether or not either parent is at increased risk of carrier status:
- Cystic Fibrosis (all parents)
- Canavans Disease (Jewish status)
- Sickle Cell Disease (African American status)
- Tay-Sachs Disease (Jewish or Cajun status)
- Thalasemias (Mediterranean or Southeast Asian descent)
Nuchal translucency or Nuchal fold scan
Between 11 and 14 weeks, an Ultrasound examination which measures the clear space (translucent) at the back of the neck (nuchal) of the developing fetus can be helpful in detecting possible Down syndrome. This test in combination with a blood test from the mother can help determine whether further testing should be performed.
Between 16 and 18 weeks gestation, blood is drawn from the mother and analyzed for the presence of four substances: hCG (human chronionic gonadotropin), AFP (alpha-fetoprotein), inhibin A and UE3 (estriol). Levels that are abnormally high or low are associated with an increased risk of Down syndrome or spina bifida and other neural tube defects. It is important that the medical care providers properly assess fetal age and maternal weight in determining whether or not the results are normal. If the quadruple screen result is abnormal, patients should always be offered further testing, such as a targeted ultrasound or amniocentesis, so that a diagnosis can be made with certainty.
At 16 to 22 weeks gestation, an ultrasound examination is performed to check the fetal anatomy. At that time, the fetal neck, abdomen (stomach, kidneys, bladder), head (brain), heart, spine and limbs are carefully examined for signs of abnormalities. This examination should be performed by a well trained, qualified medical professional who is aware of the accepted standards of care. Often, a wide range of fetal abnormalities can be detected with a competent and thorough examination, including but not limited to spina bifida and other neural tube defects, major heart and brain defects, Down syndrome, and missing organs and bones.
Your rights in the event of a Prenatal Misdiagnosis ( Wrongful Birth )
In order to recover in such a claim, the parents must prove that a medical provider's negligence prevented them from knowing that there was an increased risk that the fetus had a major birth defect or genetic condition. They must also prove that they would probably have terminated the pregnancy if they known there was a problem. By doing this, the parents' love and devotion to their child is not questioned because the relationship between the parents and child is already established and will continue forever. Instead, they are just acknowledging that if told of the disease or defect during the pregnancy, they would have chosen not to undertake the emotional hardships and financial responsibility involved in parenting a severely disabled child with a lifelong disability. Since the child would most likely not 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 proven, the negligent medical provider must provide monetary compensation for the special medical expenses and other extraordinary expenses related to the child's condition for the duration of the child's lifetime. In addition, compensation must be provided for the emotional injury and anguish endured by the parents in being forced to take on the lifetime burdens and tasks of raising a disabled child.
Common Mistakes made in prenatal misdiagnosis, wrongful birth cases:
While every potential prenatal misdiagnosis, wrongful birth claim requires a complete investigation as to whether or not a medical provider was negligent, mistakes in such cases include:
- Failure to offer quadruple screen (or any AFP screening) at the appropriate gestational age
- Failure to take a competent and thorough genetic screening history of both parents
- Failure to offer appropriate testing at the appropriate gestational age
- Misplaced or overlooked prenatal screening results by obstetrical care providers
- Improper laboratory interpretation of prenatal screening testing
- Improperly dated pregnancies
- Improper interpretation of prenatal screening results by obstetrical care providers
- Inadequately performed or interpreted standard ultrasound to survey fetal anatomy
How We Can Help
Unfortunately, many children with birth defects or genetic disorders and diseases will require a lifetime of expensive medical care.. Many will need to be followed by several different types of specialists and participate in ongoing physical and occupational therapy. It is obviously in such children's interests to be in a position to benefit from the very best and most advanced treatment available. There is often a big difference in the treatment and services that private medical insurance or such programs as Medicaid will cover, and the most desirable state of the art treatment. If your child has a birth defect(s) or genetic disorder or disease that you suspect may have been detectable during pregnancy, getting the compensation that you deserve may be the only way to provide the care and services needed to maximize your child's potential.
New Jersey medical malpractice lawyers Michael L. Weiss, Esq. and Robert E. Paarz, Esq. have presented over 30 prenatal misdiagnosis, wrongful birth type cases to juries, and have helped those families obtain the financial assistance needed to lessen or even eliminate the financial burden caused by birth defects and genetic disorders. They are committed to using their experience and knowledge to help families that have been negligently deprived of their constitutional right to choose whether to continue a pregnancy involving a fetus with genetic disorders or birth defects obtain fair compensation.
If you would like to discuss the possibility of pursuing a claim, please contact Weiss & Paarz, P.C., today.