by, Lexicon Legal
New technologies in the area of assisted reproduction have helped many Americans become parents in recent decades. While these technologies bring joy to many, errors in usage can also cause some of the most devastating, emotional, and personal losses a person will experience in a lifetime. Assisted reproductive technologies have opened up an entirely new category of wrongful life claims. Litigators must be prepared to understand the science behind these technologies, the appropriate standard of care for new procedures, and how these issues apply within the existing legal framework. There is also wrongful life litigation that falls under more traditional fact patterns: defective birth control, for example, or failure to honor a patient’s wishes to refuse medical treatment.
ERRORS IN FERTILITY TREATMENTS
It has been more than forty years since the first baby conceived through in vitro fertilization was born in England in 1978. Since then, thousands of in vitro fertilizations have been performed successfully across the world. Other fertility treatments – such as sperm and egg donations, artificial insemination, and hormone therapies – have also expanded and improved. But there are many ways that these procedures can go wrong. When errors are committed in assisted reproductive services, the consequences can be far more devastating than they are in other medical malpractice cases. Here are just some of the ways that reproductive and fertility medical professionals can commit malpractice:
Insemination by the wrong donor
Fertilization with the wrong egg
Implantation of the wrong embryo
Other errors in the handling of genetic materials
Fertilization of a woman without the consent of the biological father
Errors in handling genetic material or performing services can lead to a conception that was never intended. It can also lead to the conception of a baby that is not biologically related to the mother who carries it – sometimes even without her knowledge. Medical professionals who are negligent in performing fertility treatments and rendering reproductive services are liable for medical malpractice. They can also be held liable for the wrongful life of a baby that was not intended to be conceived.
THE ORIGINAL WRONGFUL LIFE CLAIMS
New reproductive technologies have resulted in an entirely new class of wrongful life claims. Yet there are still more traditional forms of wrongful life claims that have been in existence for decades. The most common example is a birth control failure. In this case, the consumer might have a product liability claim against the manufacturer of a condom or birth control pill. There could even be a medical malpractice claim against a negligent healthcare provider. In one troubling case, a Seattle woman was accidentally given the flu shot instead of her birth control injection. The family received a $10 million settlement for the care of a child born with severe disabilities.
Negligent healthcare professionals can also be held liable for wrongful life if they force life-saving medical treatment on someone who does not want it. It can be difficult, of course, to prove a patient’s wishes in the midst of an immediate medical emergency. However, if the patient has clearly communicated his or her wishes to healthcare professionals, there is a valid advance directive, or a person with healthcare power of attorney has ordered medical staff not to administer life-saving interventions, these wishes must be honored. A life that is prolonged against a patient’s wishes can give rise to a claim for wrongful life. The New York Times spoke with a woman who filed suit for exactly that reason. Her husband was given life-saving medical treatment against both his wishes and her express orders to medical staff. Now, she is suing for the costs of his prolonged life, which are not insignificant. The victim spent a month in a coma, and in addition to a vast amount of medical bills for round-the-clock care, he was subjected to pain and suffering for weeks, entirely against his will. These are compelling facts to present to a jury.
COMPREHENSIVE LITIGATION SUPPORT FOR WRONGFUL LIFE CLAIMS
Wrongful life claims are complex. Litigators must be prepared to explain complex technologies and cutting-edge procedures. Wrongful life attorneys must find credible experts who can establish the standard of care in cases without a vast amount of legal precedent. And after all this, litigators must be prepared to establish the amount of damages in a case with few tangible losses. For example, the medical bills for pregnancy and delivery in a wrongful life case are easy to document. But what about the emotional losses? What is the value of being impregnated against your will? What about the knowledge that you were wrongfully impregnated with someone else’s biological child? What if the woman has to make the impossible decision to either raise a child that is not biologically hers or to “switch” babies with another woman who is carrying her biological child? These are devastating emotional losses. While they might be difficult to value, they are extremely real and incredibly compelling to jurors.
Contact us today to learn how Guidepoint’s litigation support services can help you navigate the many complex topics associated with wrongful life litigation. Our suite of services helps attorneys litigating the new types of wrongful life claims, as well as the “traditional” cases that are still being pursued. Tap the vast Guidepoint Network to find the right expert to advise on issues of technology, law, standards of care, and the valuation of intangible damages. With our support on the most technical aspects of litigation, your team can focus your energy on building a compelling case and delivering the results your clients expect.
Please note: This article contains the sole views and opinions of Lexicon Legal Content and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Lexicon Legal Content is prohibited.
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