Perhaps the most feared prospect for soon-to-be is the possibility that their child will suffer birth defects. As part of prenatal care, a doctor will assess the pregnant woman’s health, identify any risks for birth defects, evaluate any medication regiments, and periodically assess the health of the fetus as the pregnancy proceeds.
Consulting with a doctor before and during pregnancy substantially reduces the risk of birth defects. But doctors sometimes make mistakes. A doctor might fail to notice an abnormality during routine testing which, if identified early, could have been remedied. A doctor might fail to identify that a combination of medications that the mother is taking for other issues can be dangerous to a child. A doctor might fail to properly instruct the mother regarding what to do in the event of early labor.
Like virtually all other medical errors, a doctor’s mistake causing a birth defect can form the basis of a medical malpractice case.
In the sections that follow, we describe how a plaintiff can prove each of the elements of a medical malpractice case where a birth defect was caused by improper prenatal care.
Proving Negligence
A doctor acts negligently by failing to provide the quality of care that other reasonably skilled and competent doctors would have provided under similar circumstances. In this type of lawsuit a patient must prove two things to demonstrate negligence:
- the appropriate standard of medical care, and
- breach of that standard of care.
Standard of Care
“Standard of care” is a legal term that refers to the level of competence that most reasonably skilled and knowledgeable doctors would have achieved under similar circumstances.
In the vast majority of medical malpractice cases, proving the medical standard of care requires expert testimony. The patient (usually through an attorney) consults an obstetrician who offers an opinion as to the quality of care that most doctors would have provided in similar cases.
The relevant standard of care depends on the type of negligence being asserted. So, in a birth defect case, the plaintiff should first consider whether the birth defect could have been caused by any problems in prenatal care. If so, the specific problem should be identified. The standard of care identified by the plaintiff’s expert medical witness should be closely related to the specific problem with prenatal care.
For example, imagine a woman with multiple myeloma consults a doctor. The woman informs the doctor that she plans to conceive a child soon and wants to make sure that she is healthy enough to have a child. The doctor determines that the woman is healthy enough, but fails to inform her that one of her medications, thalidomide, is known to cause birth defects. The mother conceives a child and the problem with the medication is not caught until the third month of pregnancy. The child is born with a debilitating birth defect.
The plaintiff would hire an expert witness to explain a doctor’s obligations when a woman asks whether she is healthy enough to have a child. The doctor would likely opine that in that situation, a reasonably competent doctor would check the woman’s medications and inform her if any carried risks of birth defects.
Breach of the Standard of Care
The next step is to prove that the defendant doctor breached the standard of care. The expert witness spells out exactly how the doctor’s conduct fell short of the standard of care -- what should have been done but was not done, and vice versa.
Continuing with the example of the woman with multiple myeloma, a jury would determine whether the doctor’s conduct fell short of the standard of care. If the jury believes the plaintiff’s expert witness, who testifies that the standard of care requires a doctor to inform a woman contemplating pregnancy if her medications could cause birth defects, the jury would find that the doctor’s conduct breached the standard of care, because the doctor failed to inform the woman of the consequences of taking her medication.
Showing Harm Caused by the Negligence
In order to win a medical malpractice lawsuit based on improper prenatal care leading to birth defects, the patient must prove that the doctor’s negligence caused foreseeable birth defects.
The critical issue is whether the negligence actually caused the birth defects. It is insufficient to show a combination of negligence and birth defects.
Continuing with the example from above, imagine that the child is born with mental defects. But expert medical testimony proves that the defects were caused by fetal alcohol syndrome, not the use of thalidomide.
In that case, the doctor was negligent, and the child was injured. But the negligence did not actually cause the injury. The mother’s use of alcohol during pregnancy caused the injury.
