Tubal ligation is a medical procedure that, if done correctly, renders a woman incapable of becoming pregnant. But what happens if a woman becomes pregnant after having had a tubal ligation? Can the woman sue the doctor for medical malpractice? How exactly was the woman “harmed” if she gives birth to a healthy baby?
Society generally considers the birth of a child to be a very positive experience. For that reason, many courts have a history of barring lawsuits seeking damages for wrongful birth of a healthy baby. However, the courts of most states now allow lawsuits for wrongful birth.
States with at least one case allowing such a lawsuit include Arkansas, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginian, Washington, West Virginia and Wyoming.
So while most states allow women to sue doctors for pregnancies occurring after tubal ligations, the states vary significantly in terms of what damages are allowed. This article focuses primarily on the various types of damages that a woman might seek as a result of a wrongful pregnancy.
Cost of the Tubal Ligation
Perhaps the most obvious form of damages is the cost of the tubal ligation. Since the purpose of the tubal ligation was to prevent future pregnancies, when a pregnancy does occur, that's a pretty clear indication that the patient didn't get what they were paying for, so most courts will allow recovery of the cost of the initial procedure plus any ancillary costs. Alternatively, the patient may be able to recover the cost of a second tubal ligation.
Cost to Terminate Pregnancy
In some states, if the woman elects to terminate the pregnancy, the negligent doctor may be held liable for the cost of an abortion procedure. The choice of whether to abort the pregnancy, of course, remains at the discretion of the pregnant woman.
Cost of Childbirth
If the woman carries the child to term, the negligent doctor will likely be liable for both the prenatal and postnatal medical expenses associated with the birth. The doctor will also likely be liable for any medical complications that arise during the process.
Woman’s Reduced Abilities During Pregnancy
Some states effectively consider the woman to be "disabled" during the pregnancy, and award damages accordingly. Courts commonly award damages for a person’s loss of quality of life after becoming disabled. States that award disability damages for wrongful pregnancies calculate damages the same way. They arrive at an appropriate dollar value to place on the reduced quality of life during the pregnancy and award the difference between that value and the value of the woman’s life had the pregnancy not occurred.
Loss of Consortium
Recognizing that a pregnancy can place a hardship on the spouse of a pregnant woman, some states award damages to a spouse for loss of consortium and intimate companionship in the event of a wrongful pregnancy.
If the woman’s income is reduced due to missed work as a result of the pregnancy and/or childbirth, many states will allow the woman to recover the income that she would have been able to obtain if not for the pregnancy. However, most states do not allow a woman to recover lost wages for time missed at work as a result of the woman’s obligation to raise the child.
Cost of Household/Childcare Services
A pregnancy may reduce a woman’s ability to assist with household activities, including cleaning and caring for children. Some states allow the woman to recover damages accordingly, i.e. compensation for the cost of hiring outside cleaning and/or childcare services.
Pain and Suffering
A tubal ligation can be a very unpleasant experience. If it later becomes clear that the procedure failed, the woman may be able to recover damages for the pain and suffering that resulted from the procedure. The logic behind these damages is that the woman was willing to accept the pain and suffering associated with the procedure as a tradeoff for the procedure's being successful. If the procedure failed, the woman was deprived of the benefit, so she should be compensated for the pain and suffering.
In many states, a woman will also be able to recover the pain and suffering associated with the pregnancy and delivery of the child. She may also be able to recover for any physical disfigurement resulting from the birth (i.e. scarring after a C-section procedure).
Finally, she may be able to recover for pain and suffering associated with a second tubal ligation to fix the defects with the first procedure.
In some states the woman may recover for the anxiety and mental distress associated with the unexpected pregnancy. But in most states the woman may not recover for the anxiety associated with raising a healthy child.
This list of damages is not comprehensive. Although these are the most commonly sought types of damages in wrongful birth cases, other types may be available.