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Wrongful life suit could benefit infants born with brain damage

Adequate and attentive prenatal care is an essential aspect for most health pregnancies. What constitutes proper care can differ from patient to patient, as one mother's age might necessitate prenatal testing while another woman could possibly require extra visits or ultrasounds due to a pre-existing medical condition. When an attending obstetrician is negligent in providing care, ultimately resulting in serious injury or brain damage in a newborn, compensation through a medical malpractice suit is often the most appropriate course of legal action for parents to take. Unfortunately, when it comes to pregnant military members, serving their country can make it much more difficult to seek recourse.

According to a lawsuit, an active duty airman sought prenatal care from a military hospital in New Jersey back in 2001. At the time she was told that she did not require any fetal testing and was denied the opportunity to have any performed. Without the ability to undergo any testing to check for birth defects or other anomalies, the woman had no idea that her son suffered from serious birth defects until his birth. 

Typically, this type of issue would be addressed in a civil suit for medical malpractice, but the military makes it impossible for active duty mothers to sue for negligent prenatal care, which also leaves their injured children ineligible for compensation. Spouses of active duty service members are not included in this loophole and can still file claims when necessary. There are some state laws that can get around the issue for military mothers, including the four different states -- one of which is New Jersey -- that allow parents to file a wrongful life suit.

While there might be some controversy or uneasiness surrounding the term "wrongful life," it is a useful tool for parents who would have opted to terminate a pregnancy had they known that their child would be born severely disabled and injured. These types of cases often involve children with severe birth injuries and brain damage who will require care around the clock even well into adulthood, and will likely never be able to make any type of decisions on their own. Just as administering the incorrect medication or performing the wrong procedure can be considered acts of negligence or medical malpractice, failing to take necessary action can also cause serious and sometimes irreversible harm.

Source: The Huffington Post, "Reproductive Malpractice and the U.S. Military", Dov Fox and Alex Stein, July 2, 2015

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Alan D. Bell
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Phone: 973-233-4291
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