As this year’s infestation of mosquitos carrying the Zika virus plays itself out in the media, what are the important legal considerations for a pregnant (or soon to be pregnant) mother as it regards her unborn child and the possibility of birth defects and in particular microcephaly?
Transmission locally, through travel, or by sexual relations should not matter when considering your legal options when you are pregnant giving birth to a Zika impaired baby- the point being that you have legal options. Firstly, if your transmission was from a sex partner (other than your spouse) did that person know they were a carrier and did they warn you before having sex? If not, and the partner is financially able to respond in damages (perhaps even through the general liability protections of homeowners policies) that may be your first defendant in an effort to receive compensation for you damaged child.
Next, “Were there defects diagnosable in utero that were missed?” Defects which are diagnosable in utero during pregnancy, but which are missed (a mis-diagnosis) through medical negligence are actionable in many states including Florida. In Florida they fall under a medical malpractice category called “wrongful birth”. A wrongful birth lawsuit allows a family to recover all extraordinary expenses incurred in the past, and to be experienced in the future, caused by the impairing condition to the child for the duration of the child’s life expectancy. Parents can further claim damages for mental anguish sustained in the past and to be experienced in the future by reason of the child’s birth in an impaired condition. The essential element of proof however, is that if the parents knew of the defect the parents would have terminated the pregnancy and avoided the birth of an impaired child. This assertion may present moral, religious, and ethical dilemmas for some families. For others, it is the only realistic way to obtain funding to provide a reasonable life for both child and family. The life care needs of a child born with microcephaly can approach $10 million depending on the severity of the particular impairment.
The challenge for both the medical professional and the birth injury lawyer revolves around the diagnosis. Literature reflects that diagnosis through ultrasound may take up to 19 weeks. This is a time well beyond a routine ultrasound for dating gestation. With a diagnosis of Zika and a pregnancy either soon thereafter or during pregnancy it will likely become incumbent on the physician to have a higher degree of suspicion of defects in the fetus and increase the level of prenatal monitoring in order to give the parents an informed choice as to whether or not to bring a child into the world and face these life altering challenges. Our office has investigated and handled several wrongful birth cases and well understands the emotional and financial challenges that these families face.