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Is My OB-GYN Liable If My Child Is Born with Down Syndrome?

Modern technology allows parents of newborns to learn in advance much about the baby’s health. For parents over a certain age or with a history of genetic disorders, genetic testing during pregnancy has become customary. Genetic counseling is a key part of most pregnancies, mainly when the unborn child shows signs of Down syndrome. Doctors in Maryland are required to give parents informed consent and provide accurate testing reports. Report and consent failures can give rise to liability.

Here, Bennett & Heyman’s Baltimore medical malpractice lawyers explain how Maryland law gives rise to liability when a child is born with Down syndrome, a chromosomal disorder that causes intellectual disabilities, a characteristic facial appearance, and weak muscle tone. Parents in Maryland ought to know the risks if their unborn child carries a congenital disorder. If you didn’t receive proper information about your child’s congenital disorder, call (410) 429-7856 to speak to one of the attorneys at Bennett & Heyman to learn more about your rights.

What is Failure to Provide Informed Consent for Parents of a Child with Down Syndrome?

Maryland physicians are required to give patients what is known as adequate informed consent. You should talk to a Baltimore birth injury lawyer about the compensation you can receive for your losses in a successful case for inadequate consent.

Healthcare providers must communicate information that will enable patients to make intelligent and informed choices. These exchanges include the full and frank disclosure of risks as well as useful information regarding a proposed course of medical treatment. Specifically, Maryland physicians maintain a duty to disclose the:

  • Nature of the ailment
  • Proposed treatment
  • Probability of success of therapy and its alternatives, and the risk of negative consequences associated with such treatment.

In essence, informed consent requires that parents understand their options and the consequences involved with each.

A risk is anything a physician knows or ought to know that would be significant to most people or a reasonable person in the patient’s position. As a matter of law, disclosure of these risks is essential in deciding whether or not to submit to a particular medical treatment or procedure. While there is no requirement for a crash course in medical science, the physician has to disclose the information that is relevant to the patient and his or her condition.

In the case of Down syndrome, there is no requirement that the information provided serves specifically to determine whether to terminate the pregnancy. The rejection of this notion was clear in the decision of Kassama v. Magat (2002) (Kassama). However, informed consent applies to most other situations. Also, the Kassama lawsuit was a wrongful action as opposed to a lawsuit focused on the lack of adequate consent.

Failure to apprise parents of all known risks can have many repercussions; if you think this may have happened to you, talk to an experienced Baltimore personal injury attorney about your circumstances. The legal standard in Maryland relates to the physician’s communications about the potential perils of various medical conditions and procedures.

Negligent Misrepresentation Claims Against a Physician

If you received incorrect reports about the results of your child’s Down syndrome tests, you might have a claim for negligent misrepresentation. A cause of action is possible if the mistaken information would have been spotted by a reasonably competent physician, since that would support a claim of negligent misrepresentation.

When you are under the care of a doctor, you generally rely on the physician’s expertise and professional interpretations. In the case of OB-GYNs, you are relying on the doctor’s competence and skill to inform you about the risks of a pregnancy and the analysis of test results. If your doctor gives you a misinformed interpretation of genetic testing results, you should talk to an experienced medical malpractice attorney who can help you determine the actions you can pursue.

If the genetic condition is such that the infant dies, you can also file wrongful death and survivorship claims premised on the same consent failures and other possible legal grounds. You should contact an attorney without delay because there are strict time limitations to file a wrongful death claim in Maryland.

Limitations to Actions a Child Can Pursue Against Injury in Maryland

In the recent opinion of Dowling v. A.R.T. Institute of Washington (March 6, 2019), Maryland’s federal district court explained its position regarding liability when a child is born with a congenital disorder that could have been detected early in a pregnancy, such as Down syndrome. In the interplay between wrongful death and survivorship actions under Maryland law, actions for “wrongful life” are prohibited. However, claims about consent are permitted.

The Kassama ruling concluded that an action brought by or on behalf of impaired children that were not intended to be born due to failure to diagnose was not recognized. The court’s rationale was that “the injury” was the mother’s inability “to terminate the pregnancy and avert her birth,” noting that the injury of life itself is not and cannot be an injury as a matter of law.

Contact a Skilled Maryland Medical Malpractice Law Firm Today

If you have questions about the liability of an OB-GYN after a baby is born with a congenital disorder, you should contact the Baltimore, MD personal injury law firm of Bennett & Heyman. We have extensive experience in dealing with complicated cases of medical malpractice. For more information or to schedule your free consultation, call us today at (410) 429-7856.

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