Wrongful birth, Wrongful life and Wrongful pregnancy: What’s the difference and who can sue who: Part 1
By Bronwyn Mc Arthur and Dominique Spies (see their bios below).
Obstetrics claims, which have been as high as R55 million on the court papers lodged, are often misunderstood and sometimes feared when they ought not to be. It is useful to understand where medical malpractice claims in obstetrics can arise from and what to be aware of to ensure that should a claim arise, the practitioner isn’t caught off guard.
Where claims might arise
Claims might arise from, among other things, wrongful pregnancy, wrongful birth, wrongful life and cerebral palsy matters. In part 1 we will deal with wrongful pregnancy, part 2 wrongful birth, part 3 wrongful life claims and part 4 cerebral palsy cases.
Wrongful pregnancy unpacked
A wrongful pregnancy claim occurs when a failed sterilisation or termination results in a pregnancy and subsequent birth of a healthy child. The medical practitioner would have had a duty to carry out the sterilisation or termination. The sterilisation or termination failed, and the parents suffered damage (e.g. financial or emotional) as a result of the pregnancy.
The babies born from these pregnancies are usually healthy (i.e. no abnormalities or disabilities), but the parents did not plan to have another child due to financial and/or other reasons.
Who may institute a claim for wrongful pregnancy?
Anyone responsible for the support of the child (for example the parents of a child born from a failed sterilisation or termination) may institute a claim against a medical practitioner for wrongful pregnancy. The person instituting the claim will have three years from the date they became aware of the failed sterilisation (in the event that it is too late to terminate the pregnancy) or termination to institute this action against the medical practitioner.
What may be claimed
The parents may institute a claim for the following:
1. The costs of the failed sterilisation or termination;
2. The medical expenses of the pregnancy;
3. The parent’s loss of income due to the pregnancy; and
4. The costs of raising the child.
What to be aware of
Accurate and comprehensive medical records are a medical practitioner’s best friend. Medical practitioners should ensure that proper informed consent is taken. The discussions with the patient (and anyone else accompanying them) regarding termination and sterilisation, it’s risks, costs and consequences, need to be recorded during consultations. Ensure that your medical malpractice insurer is made aware of the failed sterilisation or termination immediately, so they can advise you accordingly.
Bronwyn Mc Arthur holds a Bachelors of Commerce, as well as a Law degree, both from the University of Pretoria. After completion of her degrees she worked as a Conflicts Analyst at Hogan Lovells, a global legal practice that helps corporations, financial institutions and governments across the spectrum of their business and legal issues globally and locally. She then worked as a Liberty Financial advisor for two years, where she gained a wealth of experience in the insurance field. Bronwyn is currently working as a representative at Natmed Medical Defence (Pty) Ltd. She adds incredible value to the Natmed Team with her legal and insurance experience.
Dominique Spies holds a Bachelors of Science, as well as a Law degree, both from the University of the Witwatersrand. After completion of her studies she completed her articles at Bouwer Cardona Inc. One of Bouwer Cardona Inc’s specialities is working in medical malpractice litigation, as well as assisting healthcare facilities with their legal compliance in terms of the relevant legislation. Dominique worked mostly in the medical malpractice department of Bouwer Cardona Inc and gained experienced in medical malpractice litigation. On completing her articles, she joined the Natmed team where she has worked extensively on several of Natmed’s matters which Bouwer Cardona were instructed on. Dominique was admitted as an attorney of the High Court of South Africa in April 2018.
Both Bronwyn and Dominique work closely with Donald Dinnie, the CEO of Natmed, who was formerly CEO of Norton Rose Fulbright South Africa.
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