What’s Wrong with a Wrongful Pregnancy?

December 28, 2016 | Attorney, Matthew Dolman
What’s Wrong with a Wrongful Pregnancy?

For many couples, pregnancy is like a dream come to life. The prospect of growing their family from two to three can bring about grand changes in an individual's worldview.

But what if that pregnancy was unwanted? What if that pregnancy was not expected because one or both partners underwent medical sterilization?

In 2011, the Centers for Disease Control and prevention studied unintended pregnancy. They determined that, in 2006, 49% of pregnancies were unintended. That is not to say that nearly half of pregnancies were unwanted, though. Some of these were just mistimed.

So with nearly half of all pregnancies in 2006 being unplanned, there are plenty of reasons for the surprise. One that is not expected is a pregnancy that occurs after a vasectomy or tubal ligation, the two most common procedures for permanent birth control.

In a vasectomy, the vas deferens—the tube that carries sperm from the testicle to the urethra—is cut or otherwise sealed. While a man who has undergone this procedure will continue to produce sperm cells, these cells cannot be ejaculated. Conversely, a tubal ligation blocks, ties, or cuts the fallopian tubes. This prevents a woman's egg from reaching the uterus from her ovary, where it can then become fertilized.

The common practice following a vasectomy or tubal ligation procedure is to test for sperm or egg cells after the surgery. This is typically done within one to two months after the procedure. As a doctor performing these tests, the rigor falls on him or her to ensure that the sterilization has been successfully completed.

While these two forms of surgical sterilization are the most permanent, studies have shown that around 10 in 1,000 vasectomies and 13 in 1,000 tubal ligations will fail within five years of surgery. At about 1% of the total number of procedures completed, it may not seem like much, but a failed sterilization procedure can leave a couple distraught.

Many people who undergo these permanent birth control procedures do so to avoid pregnancy because of the risk of congenital or age-related disorders, because of risk to the health of the mother, or because of personal preference. For those who have decided that sterilization is their best option, even one child can affect their lives permanently.

For a sterilization procedure negligently performed, the couple may seek compensation for prenatal, delivery, and neonatal medical expenses, lost wages due to pregnancy and recovery after birth, and the cost of the unsuccessful sterilization procedure. Where they apply, damages for the mother's pain and suffering and the father's loss of consortium during pregnancy and recovery can be claimed. Some states even allow a claimant to be compensated for the expenses of raising a child if financial constraints were the reasons for seeking surgical sterilization.

In a recent lawsuit filed by a Michigan woman against her doctor, she claims to have become pregnant after having a tubal ligation procedure done. The report states that her doctor said her fallopian tubes were blocked and that there was no chance of her becoming pregnant.

However, in 2011, three years after her tubal ligation procedure, she found out she was expecting. The mother, who is now 50-years-old, gave birth to a child with Down Syndrome. At the age of 45 when she became pregnant, her chances of giving birth to a child with Down Syndrome increased to 1 in 30.

The child's mother is now seeking damages for emotional distress caused by the unplanned pregnancy. Her claim is wrongful pregnancy, which differs from wrongful birth in subtle ways.

A wrongful birth claim involves cases where the child is born with a severe congenital disorder or birth defect that the mother could have avoided through abortion had she known about the fetus's condition. In these types of cases, a doctor's negligence can be scrutinized to see if their actions had anything to do with the birth of the child.

In a wrongful pregnancy case, the claim is that the child was born only out of a doctor's negligent performance of a sterilization procedure. The breach is the doctor's duty to perform the procedure correctly.

The Michigan mother is suing only for the emotional distress of having been pregnant when she should not have been. The Michigan Court of Appeals has already determined that she can only sue for emotional distress; her demand cannot take into account the financial burden of raising a child with Down Syndrome.

These types of cases are not that uncommon. When a doctor's guidance is as esteemed as it is in our society, their negligent practices must be held accountable. Wrongful pregnancy is not necessarily considered medical malpractice, but a botched surgery that results in pregnancy following a doctor's assurance that pregnancy is not a possibility can be the basis of a lawsuit.

In fact, 40% of medical malpractice claims are based on misdiagnosis. Whether the procedure was completed incorrectly or a doctor fails to produce valid tests that indicate that the treatment was a success, a claim of negligence can be made.

If you or someone you know conceived after a botched surgical sterilization procedure, you may have a case for claiming damages caused by a doctor's medical negligence. Pregnancy is seldom a simple process, especially when it is to be least expected. At Dolman Law Group Accident Injury Lawyers, PA, we understand that this situation may be stressful, but we are here to defend your individual rights.

To discuss your case with an experienced attorney, please call us at (727)451-6900 or email us through our Contact Us page to schedule your free case evaluation.

Dolman Law Group Accident Injury Lawyers, PA

800 North Belcher Road

Clearwater, FL 33765


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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