Wrongful Birth Claims

With nearly 50 years of experience and recognition as one of the country’s leading medical negligence teams, we can help you prove that a medical mistake happened and that it had a significant impact on your life.

We work hard to help families find answers and secure the compensation they need to move forward.

What is a wrongful birth claim?

Wrongful birth is a type of medical negligence claim. It arises from the birth of a child who would not have been born if the healthcare provider had properly advised or treated the parents.

Two main scenarios can give rise to such claims:

1. Failure to perform a sterilisation/vasectomy procedure correctly leads to unintended pregnancy and birth.

1. Failure to diagnose a genetic or chromosomal abnormality or disability during pregnancy. If it had been detected, the parents would not have continued with the pregnancy if they had known.

Definition of Wrongful Birth

Wrongful birth is a type of medical negligence claim that arises when a child is born with a condition or disability that could have been prevented with proper medical care. It occurs when a healthcare professional fails to diagnose or treat a condition during pregnancy, resulting in the birth of a child with a genetic or congenital abnormality.

These claims can be brought against healthcare providers, including doctors, nurses, and hospitals, for their failure to provide adequate care and advice to parents. Wrongful birth claims highlight the critical role of healthcare professionals in ensuring the health and well-being of both the mother and the child during pregnancy.

Causes of wrongful birth

Wrongful birth can occur due to various reasons, including:

• Failure to diagnose genetic conditions or disabilities during pregnancy
• Failure to provide accurate information about the risks of genetic conditions or disabilities
• Failure to perform proper antenatal screening
• Failure to provide adequate care and treatment during pregnancy
• Negligent treatment during childbirth
• Failure to provide informed consent for medical procedures

These causes can result in the birth of a child with a condition or disability that could have been prevented with proper medical care. When healthcare professionals do not meet the expected standards of care, the consequences can be life-altering for the family involved.

Eligibility for a wrongful birth claim

To be eligible for a wrongful birth claim, you must have suffered harm or injury as a result of medical negligence during pregnancy or childbirth. This can include:

• Physical and emotional pain and distress
• Loss of earnings due to the pregnancy and childbirth
• Psychiatric injury
• Additional costs associated with raising a child with a disability

You must also be able to prove that the healthcare provider breached their duty of care and that this breach caused harm to you or your child. Establishing this connection is crucial for a successful wrongful birth claim, and an experienced medical negligence solicitor can help you gather the necessary evidence.

Failed sterilisation wrongful birth claims

When performed correctly, sterilisations and vasectomies are highly effective at preventing pregnancy. However, medical negligence can sometimes lead to the procedure failing, resulting in an unwanted pregnancy.

For example, surgical negligence may result in the fallopian tubes not being entirely blocked and sealed. Or the medical team may fail to inform you of the risks of having unprotected sex in the first few weeks following the procedure.

Disability-based wrongful birth claims

Congenital conditions and disabilities such as Down’s syndrome, spina bifida, cystic fibrosis, or Edward’s syndrome have lifelong impacts on a child and their family. Your healthcare team is responsible for checking for conditions such as these and identifying where there could be risks.

Parents initiate wrongful birth compensation claims due to negligent medical treatment that resulted in the birth of a child.

You may have a claim for wrongful birth compensation if:

1. Your child was born with a chromosomal or genetic condition or disability, and
2. The disability should have been detected during pregnancy but was not, and
3. You can prove that you would have terminated the pregnancy if you had been properly informed.

How much compensation can I receive for wrongful birth?

We cannot say exactly how much compensation you will receive for a wrongful birth claim. Each claim is different, and various factors affect the outcome. Compensation is assessed on a case-by-case basis.

However, there are a few things to know.

Failed sterilisation compensation

A failed sterilisation claim is for the birth of a child that otherwise would not have been conceived. However, the courts regard a healthy child as a blessing, not a financial burden.

This means you cannot claim the costs of raising a healthy child. Instead, the compensation covers any additional costs of having a child you would not have had, such as:

• Pain, suffering and emotional distress caused by an unwanted pregnancy/birth.
• The costs of the pregnancy, including medical expenses.
• Loss of earnings for time off work due to pregnancy and birth.
• The cost and distress of having to undergo a second sterilisation procedure.

Disability-based wrongful birth compensation

Disability-based wrongful birth claims are likely to be more extensive than failed sterilisation claims. Parents may find it hard to work because of the extra responsibilities of raising a disabled child. They might need to adapt their home or pay for round-the-clock medical and personal care for the child’s whole life.

In these cases, compensation could be in the hundreds of thousands or even millions of pounds, depending on the extent of the disability, to ensure a financially secure future for the child and their family.

Depending on the circumstances of your case, you can seek compensation for:

• The loss of enjoyment of life.
• Medical bills, therapy and rehabilitation costs.
• Lost income from work or loss of earning capacity (for example, if you have to stop working due to the demands of caring for a disabled child).
• Home adjustments and specialist equipment.
• Travel costs (for attending medical and rehabilitation appointments).

Your specialist solicitor will be able to give you a more accurate figure on how much compensation you could be entitled to, considering the specific factors in your case.

How do I prove a wrongful birth claim?

Your GP, midwife, obstetrician, surgeon, and any other healthcare professional has a duty to carry out their duties with due care and attention. If their standard of care falls below what is expected of them and you suffer harm, you may be able to claim compensation.

Wrongful birth claims depend on the failure of a healthcare professional to either:

• Perform the sterilisation procedure to the expected standard, or
• Diagnose and inform you of a birth defect that should have been detected. This may be because:
  • Tests were not carried out
  • Test results were misinterpreted
  • The equipment used was faulty
  • You were not informed about genetic conditions
  • You were given inaccurate information about the condition or the risks

As part of our legal investigation, we carefully look at your medical records and the circumstances which led to the wrongful birth. These records should include details about the procedures and tests you underwent, any notes from your doctors, and any concerns raised during your care.

Bringing in an expert witness can strengthen your claim. This might be a leading medical specialist who can testify that there were failings in your care and that a competent doctor would have made different medical decisions.

If your child was born with a genetic condition or disability, we will also consult medical experts who specialise in that condition. They will carefully assess your child’s current and future needs and help us value your claim.

The claims process

The claims process for a wrongful birth claim typically involves the following steps:

1. Initial consultation: You will meet with an experienced medical negligence solicitor to discuss your claim and determine whether you have a valid case.

1. Gathering evidence: Your solicitor will gather evidence to support your claim, including medical records, witness statements, and expert opinions.

1. Pre-action protocol: Your solicitor will follow the pre-action protocol, which involves sending a letter to the defendant outlining the claim and supporting evidence.

1. Court proceedings: If the defendant denies liability or fails to respond, your solicitor may need to issue court proceedings to pursue your claim.

1. Settlement or trial: Your solicitor will negotiate with the defendant to reach a settlement or prepare for trial if necessary.

Working with an experienced medical negligence solicitor who can guide you through the claims process and help you achieve the best possible outcome is essential. Their expertise can make a significant difference in the success of your wrongful birth claim.

Is there a time limit for making a wrongful birth claim?

You usually have three years to bring a wrongful birth compensation claim. The time starts from the date of birth or the date you became aware of the negligence, whichever is later.

Wrongful birth claims can only be brought by the parent, usually the child’s mothers, as it is they who received the negligent medical treatment. The child cannot bring a claim, but in the case of a disabled child, their needs will be considered when determining the amount of damages.

How will I pay for my wrongful birth claim?

We offer a range of flexible funding options for wrongful birth claims. This could include a No Win, No Fee agreement. Under this type of fee structure, you do not have to worry about the cost of getting the justice you deserve.

If your claim is successful, our fees are a strictly capped percentage of your compensation. You retain most of your compensation, and there’s nothing to pay upfront.

If your case is unsuccessful, you will not have to pay any legal fees.

Wrongful birth claim client story

Our client sought contraception following a pregnancy termination in 2015. Despite disclosing her epilepsy treatment (Carbamazepine), known to interact negatively with hormonal contraceptives, our client was incorrectly advised to use a Nexplanon implant.

She unexpectedly became pregnant two years later. Unable to face another termination, she continued the pregnancy, experiencing severe complications, including pre-eclampsia, HELLP syndrome, and an emergency C-section at 27 weeks. Her daughter was born prematurely, suffering from chronic lung disease and requiring extended medical support.

Osbornes Law pursued a wrongful birth claim against the British Pregnancy Advisory Service (BPAS), arguing that they negligently advised our client without properly considering her medication interactions. BPAS initially denied liability, asserting appropriate counselling had occurred. However, following detailed legal negotiations, a significant five-figure settlement was reached.

How can Osbornes Law help with your wrongful birth claim?

Making a wrongful birth claim won’t erase the mistakes that were made, but it can help to improve the quality of your family’s life and compensate for any financial losses you have experienced. Calling Osbornes Law is the first step in getting the compensation you deserve. Leading client directories, including Chambers and Partners and the Legal 500, highly rate our medical negligence team.

Our lawyers are proud members of Action against Medical Accidents, a leading charity campaigning for patient safety and justice, and hold Law Society Clinical Negligence Accreditation. Both are essential credentials in handling wrongful birth cases.

With the support of an experienced medical negligence solicitor, there is only a small chance you will need to go to court. The vast majority of claims settle out of court so you can get on with your life as soon as possible, with the financial support you deserve.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 4502 8451