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Can You Sue for Birth Defects After Genetic Testing?

Genetic counseling for pregnant women can help get more information about genetic conditions in the parents and the fetus. A pregnant woman can find out more about possible genetic birth defects to make family decisions. However, if a genetic counselor makes a mistake, it can leave a pregnant woman without the information needed to make important family planning decisions.  

When a child is born with birth defects, it can require a lifetime of medical care. The child may need around-the-clock care to provide the basic needs of life, including feeding, bathing, and even movement. Parents who have a child with a birth injury may need to take care of the child full-time for the rest of their lives. 

When a birth injury is caused by professional negligence, the doctor, surgeon, OB/GYN, or counselor may be liable for damages. A birth injury lawsuit can help the family get compensation to pay for medical bills and the costs of raising a disabled child. Talk to an experienced legal team to understand your options and how you can recover the most compensation in your birth injury case. Contact an experienced birth injury medical malpractice law firm for help. 

What Is a Genetic Counselor?

A genetic counselor is a health professional with training and education in counseling and genetics. Prospective parents may use a genetic counselor to get more information about genetic conditions. They can find out about what tests are available and what genetic conditions can be evaluated. With this information, counselors can provide information and support in family planning. 

According to the National Society of Genetic Counselors, “Genetic counselors have advanced training in medical genetics and counseling to guide and support patients seeking more information about how inherited diseases and conditions might affect them or their families, and to interpret genetic test results based on your personal and family history.”

Genetic Counselor Training and Education

According to the Bureau of Labor Statistics (BLS), genetic counselors usually need a master’s degree in genetic counseling. Some education programs require an undergraduate degree in science or biology. Depending on the state, most genetic counselors have to be licensed. Getting licensed requires passing the board certification in the state in order to practice. 

Genetic counselors can also be certified through the American Board of Genetic Counseling by passing an exam. Some genetic counselors have specialized training and education in certain areas, including: 

  • Prenatal
  • Pediatric
  • Oncology
  • Neurology
  • Ophthalmology
  • Psychiatry

After licensing and certification, genetic counselors may require ongoing continuing education (CE) courses to maintain active certification. 

Prenatal Genetic Testing

Many parents get prenatal genetic testing to find out about possible concerns and conditions for the fetus. These tests can look for signs of genetic disorders, gene mutations, and birth defects. According to the American College of Obstetricians and Gynecologists (ACOG), prenatal genetic testing can include: 

  • Screening tests to look for the chances of certain genetic disorders
  • Carrier testing of the parents to see whether they carry a mutation for certain genetic disorders
  • First-trimester screening (10–13 weeks)
  • Integrated screening and sequential screening (10–22 weeks)
  • Cell-free DNA screening (10 weeks and beyond)
  • Second-trimester screening (“quad screen”) (15–22 weeks)
  • Standard ultrasound exam (18–22 weeks)

During the first-trimester screening, there is an ultrasound and blood test. The blood test measures for biochemical markers PAPP-A and hCG. The ultrasound, or nuchal translucency screening, measures the thickness of space at the back of the fetus’s neck. If there is an abnormal finding, it means there is a risk of Down syndrome or other chromosomal abnormality. 

A second-trimester screening includes an ultrasound for abnormalities of the brain, spine, face, abdomen, heart, and limbs. A quadruple blood test measures different substances in the blood to screen for neural tube defects, trisomy 18, and Down syndrome. 

Diagnostic testing can also show whether a baby has genetic conditions. Diagnostic tests include: 

  • Chorionic villus sampling (CVS)
  • Amniocentesis

Chorionic villus sampling (CVS) is a prenatal test that takes a sample of the placental tissue to look for chromosomal abnormalities. CVS testing is usually done around the 10th to 12th weeks. Amniocentesis is another test that takes a sample of the amniotic fluid. Amniocentesis looks for genetic disorders and open neural tube defects like spina bifida. This test can also look for metabolic disorders and inherited genetic defects. 

What Birth Defects Do Genetic Tests Look For?

There are several types of inherited genetic disorders that cause disorders and medical conditions in children. In some cases, only one parent has to pass on the genetic mutation. For other conditions, both parents have to have the same genes to pass them on to the child. 

Genetic disorders can involve having too many chromosomes or not enough chromosomes. Missing chromosomes is known as monosomy. An extra chromosome is a trisomy. Examples of genetic diseases include: 

  • Cystic fibrosis
  • Tay-Sachs disease
  • Sickle cell disease
  • Trisomy 13
  • Trisomy 18
  • Down syndrome (Trisomy 21)
  • Sex chrome abnormalities
  • Neural tube defects (like spina bifida and anencephaly)
  • Huntington’s disease
  • Patau syndrome
  • Edward syndrome
  • Fragile X syndrome

Genetic testing is not always 100% accurate. There can be false screening results. It is important to talk to your doctor to clarify genetic testing results and what it can mean for your fetus and your family. 

I Wasn’t Told About Birth Defects After Genetic Counseling

Many parents go through the process of getting diagnostic testing and prenatal testing to ensure the best possible health of their child. However, some doctors miss the signs of genetic disorders and the parents don’t know their child has a serious health condition until after the child is born. How do parents know if the child’s birth defects are just unforeseen or if the doctor made a mistake?

Medical malpractice happens when a doctor or healthcare professional is negligent, causing serious injury or harm to a patient. In a medical malpractice lawsuit, the injury victim has to show 4 elements of the offense: 

  • Duty of care
  • Breach of the duty of care 
  • Causation of the injury
  • Harm and damages

How is a parent supposed to know if the doctor breached their duty of care to the pregnant woman and child? A breach of the duty of care is a fancy way of saying the doctor did something other doctors would not have done. This is also known as a deviation from the standards of medical care. In a medical malpractice lawsuit, the injury victim has a medical expert testify to the jury that the doctor involved in the care did something they were not supposed to do (or didn’t do something they should have done). 

Medical experts in medical malpractice cases are generally doctors in the same practice area related to the medical injury. These doctors have similar education, training, and practical experience as the doctors who caused your medical injuries. They know how doctors are supposed to perform under certain situations. They can say when the doctor in the lawsuit did something wrong and how it caused the medical injury. 

My Doctor Said Genetic Testing Isn’t 100% Accurate

Doctors or genetic counselors are very confident in their abilities until you question what went wrong. Then these same doctors will walk back their promises by telling you that genetic testing isn’t always 100% accurate. It’s true that genetic testing doesn’t catch everything. There can be false positives and false negatives. 

A genetic test could show a high risk for some genetic conditions when the baby is born normal and healthy. A genetic test could come back negative for any mutations but the child is born with a clear genetic disorder. In some cases, the genetic testing was inaccurate. However, in other cases, the doctor may have misread the diagnostic or genetic testing. 

If a doctor, counselor, or OB/GYN misinterprets your test results, it can mislead parents into thinking their child is healthy when their child really has a serious medical condition. In some cases, the medical condition may have been improved by treatment, supplements, or dietary changes the mother could have made earlier in the pregnancy. Failure to notify parents of birth conditions could result in increased harm to the child. 

Many birth injuries are preventable and avoidable. Unfortunately, some doctors don’t give patients and their families the attention they deserve. The doctor could be overworked, under stress, or simply be distracted by things in their personal life. When a doctor can’t provide the standard of care necessary as a medical professional, it can put patients at risk of harm. 

What Is a Wrongful Life Lawsuit?

If someone dies after a negligence accident, the victim is not alive to file a lawsuit in court. If the victim can’t file a personal injury lawsuit, they can’t get compensation for their losses and they can’t hold the negligent party accountable for their actions. Instead, a wrongful death lawsuit allows the estate of the victim to file a negligence claim for injuries. 

In a wrongful death lawsuit, a personal representative can take the case to court in the place of the deceased. This allows the family members and beneficiaries to get money after the death of a loved one. The negligent party can be held liable for their actions and the family can get money for loss of support, loss of benefits, burial costs, and funeral expenses. 

A wrongful birth lawsuit is based on the idea that a child would not have been born if the parents had known about the child’s birth defects. 

For example, at 10 weeks, a pregnant woman goes in for genetic testing of the fetus. If the doctor says there is a high chance the child will be born with a terminal birth condition, the parents may decide to terminate the pregnancy to avoid the pain and suffering for the child and the mother. However, if the doctor claims the child will be healthy and the child is born with a terminal condition, the parents may try and hold the doctor responsible for the incorrect diagnosis. 

According to an article published in the Journal of Medical Ethics, “A “wrongful life” suit is based on the purported tortious liability of a genetic counselor towards an infant with hereditary defects, with the latter asserting that he or she would not have been born at all if not for the counselor’s negligence.”

Can I File a Wrongful Birth Lawsuit?

Wrongful birth lawsuits are complicated because many states don’t allow for wrongful life or wrongful birth claims. Some states have a policy where the child cannot bring a claim on their own behalf for injuries because they don’t have a right not to be born. In other states, claims are allowed as medical negligence when the injury victim can show damages. 

For example, if a doctor does not tell a pregnant patient about an available diagnostic test to determine any genetic disorders or chromosomal defects, the patient may be able to recover damages from the negligent doctor for not informing them of fetal defects where the parent would have terminated the pregnancy. 

In Washington, D.C., a patient can recover damages for extraordinary childcare expenses for wrongful birth. If the doctor failed to properly advise a patient, and the parent was unaware their child would be born with a birth injury, the parent can recover the additional costs of caring for a child with developmental disabilities

How Can a Birth Injury Medical Malpractice Lawyer Help?

Parents use genetic testing to make important decisions about their pregnancy and family planning. When a doctor, hospital, or genetic counselor gives the parents the wrong information, the parents may not be able to make an informed decision about their family’s future. 

If your child was born with a genetic defect, chromosomal deficiency, or other birth injury, it may have been caused by medical malpractice. A medical malpractice lawsuit can help you recover compensation for the additional costs of medical care and child-rearing for a disabled child. 

Contact experienced birth injury trial attorneys who have successfully represented birth injury victims across the country. Call a birth injury lawyer to find out more about your case and what kind of damages you can recover to best care for your child. For a free consultation, contact Gilman & Bedigian online or at 800-529-6162.

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