When can wrongful birth claims be made?
Why Maurice Blackburn?
At Maurice Blackburn our specialised medical negligence lawyers are here to fight for you. And while we understand that monetary compensation can’t ever replace quality of life, the needs and future wellbeing of you and your family are our top priority, and we’ll work hard to make sure you receive the best possible outcome.
All you need to know about medical negligence
If your health care professional, hospital or other facility breaches what’s known as their duty of care, you may be able to make a claim for compensation.
Types of medical negligence
Dimitra DubrowNational Head of Medical Negligence, Melbourne
"I enjoy interacting closely with my clients and helping them to access their full entitlements. It is truly rewarding knowing that we are helping empower people."
Tom BallantynePrincipal Lawyer, Melbourne
"I’m inspired by helping people achieve a measure of justice and financial stability."
Frequently Asked Questions
You may be eligible to claim wrongful birth medical negligence compensation if your medical provider fails to properly investigate and monitor a pregnancy or fails to advise you of abnormalities that may impact the decision to terminate your pregnancy.
In some states, you may be able to make a claim for wrongful conception in the case of an unplanned or unwanted pregnancy, made if your medical provider failed to properly implement contraceptive measures.
A provider can include a hospital, doctor, nurse, assistant, lab personnel, pharmacist or other employer or allied health professional.
The most common types of negligence claims that may lead to the wrongful birth or conception of your child can involve your medical practitioners failure to properly:
- perform a female sterilisation or male vasectomy
- implant a contraceptive device, including Implanon
- advise in the course of genetic counselling or testing (if this leads you to conceive a child when you otherwise would not have if given correct advice)
- detect abnormalities in the foetus by chromosome tests or the 18-20 week ultrasound.
For example, if your medical provider improperly interprets or reports results from a routine blood test, antenatal ultrasound or amniocentesis after conception, leading to false assurances that your foetus is not at risk of a congenital abnormality. This mistake may deprive you of the opportunity to terminate the pregnancy.
Medical providers owe you a 'duty of care' to exercise skill, judgement and reasonable care when examining, diagnosing, treating and advising you. If they breach that duty, you may be able to make a wrongful birth medical negligence compensation claim and they may be liable for any harm caused.
Your wrongful birth medical negligence claims can be made against doctors or hospitals for failing to investigate and monitor the pregnancy, and for failing to advise you of abnormalities discovered during a pregnancy and offering you the option to abort.
You may be able to claim wrongful birth malpractice compensation if your health care professional, hospital or other facility has breached their 'duty of care' to you under general Australian law. This also applies if the wrongful birth medical negligence results in an unexpected death.
The law in some states has a threshold that determines how significant or severe an injury has to be before you’re entitled to claim damages for pain and suffering caused by this injury. Each state and territory has its own laws that apply to medical negligence cases.
To make a successful wrongful birth medical negligence claim, you need to be able to prove that:
- there was negligent medical treatment
- the treatment caused an injury or some harm that would not otherwise have occurred
If you do have a case, we will help settle it outside of court or represent you in court. Contact us to discuss your claim.
You will only need to pay our fees if you receive a settlement for your wrongful birth malpractice compensation claim, as we provide our medical negligence services on a 'no win, no fee'* basis.
If your claim is successful, you will be charged for the costs of the investigation and the legal work performed after issuing proceedings. This will be a charge on the appropriate court scale, and you will be given more information about this at the time when the decision is made to issue proceedings.
You won't be charged our fees if your claim is not pursued. In most cases, disbursements (the out-of-pocket expenses that we pay to other people) must be paid whether you win or lose.
Yes. However, wrongful birth medical negligence law is complicated. Even if you have received negligent treatment, you cannot make a negligence claim if you haven't suffered harm or injury.
As medicine is a difficult practice, your medical providers aren't expected to be perfect. Sometimes medical treatment is unsuccessful and injuries occur, but that is not enough to show that you were treated with negligence. You will need to prove that your negligent treatment is more than a reasonable mishap or mistake.
It's important to get help from someone who understands the complexities of medical negligence law, with experience in your area. Maurice Blackburn is Australia's leading and largest team of medical negligence lawyers, with all the resources and experience that come with being a national firm.
If you have experienced medical negligence related to wrongful birth or conception, contact us today to discuss how we can help you.
In order to make a wrongful birth medical negligence claim, you will need to:
- Contact Maurice Blackburn to speak with our medical negligence team.
- We will gather information from you about what has occurred and then provide you with a preliminary assessment.
We will help you understand if you have grounds for a claim by investigating your case and getting an independent medical expert's opinion. If we believe you should proceed further, we will then lodge your legal claim and represent you at mediation and settlement hearings.
If your case doesn’t settle, we can represent you in court. We also manage coroner's inquests by liaising with the court on your behalf, preparing the case and representing you in court. Contact us today.
Time limits vary under the different state and federal laws. In most cases, you need to take legal action within three years of the injury. If your wrongful birth medical negligence claim is for a child, time limits can vary more and differ between states.
The timeline for your wrongful birth medical negligence claim may be shorter or longer depending on the case, so it's best to contact a personal injury lawyer as soon as possible. Extensions of time limits are sometimes possible.
Your wrongful birth claim and the legal process may take up to several years, especially if you have to wait for injuries to stabilise.