Wrongful Birth And Tubal Ligation Malpractice

When done correctly, a tubal ligation will render a woman unable to become pregnant. However, what happens should a woman become pregnant after undergoing a tubal ligation? Will she be able to sue the doctor who performed the procedure? How can she show that she was “harmed” if she has given birth to a healthy baby?

The birth of a child is considered a positive experience in our society. Since this is the case many courts in the past barred lawsuits which seek damages for the “wrongful birth” of a healthy baby. Now though most states allow lawsuits in cases of wrongful birth, including New York.

There are many reasons a tubal ligation may fail. In many cases, a woman will become sexually active before scarring can be completed, potentially resulting in egg fertilization. The tubes may spontaneously grow or reconnect and it is also possible that the operation is unsuccessful due to a medical error during the procedure.

There are inherent risks to both the mother and the fetus during a pregnancy after a tubal ligation. Birth defects may result. A tubal pregnancy may occur, which often requires the pregnancy be terminated due to the danger to the other.

It is important to note that a woman chooses to have a tubal ligation because she no longer wants to bear children. Pregnancy that occurs after a tubal ligation means that the parents will be forced to deal with the consequences of a pregnancy that they did not want or one that is unaffordable, leading to serious emotional distress.

Some of the damages a woman may seek in a wrongful pregnancy action include:

1. Cost of the Tubal Ligation – Since the purpose of the procedure was to prevent future pregnancies, and a pregnancy does occur, the patient obviously did not get what they were paying for. Most courts therefore allow the patient to recover the costs of the initial procedure as well as ancillary costs. The patient may also be able to recover the costs of a second tubal ligation.
2. Cost of Childbirth – If the woman carries the child to term, then the doctor who negligently performed the tubal ligation will likely be liable to prenatal and postnatal medical expenses associated with the birth, as well as medical complications that arise during the process.
3. Reduced Abilities During Pregnancy – Some states consider a woman “disabled” while pregnant and will therefore award damages, including for loss of quality of life after they become disabled.
4. Loss of Consortium – Some states will award damages when recognizing that a pregnancy places a hardship on the spouse of a pregnant woman.
5. Lost Wages – The pregnant woman’s income may be reduced due to missed work because of the pregnancy or childbirth. However, most states do not allow recovery for wages lost for missing work to raise the child.
6. Pain and Suffering – Tubal ligations are an unpleasant experience. If it becomes clear that the procedure has failed, then the woman may be able to recover for the pain and suffering resulting from the procedure.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com. You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.