If you or your significant other underwent a tubal ligation or vasectomy and still conceived a baby regardless, you may wish to sue the surgeon who performed the procedure or the organization that employs him or her. The type of claim you would file is called a “wrongful pregnancy” claim.
According to FindLaw, a wrongful pregnancy claim is one that seeks compensation for a pregnancy that was not supposed to happen. These types of claims typically only apply in situations in which one or both parents are medically sterilized, and courts typically limit compensation to medical costs and pain and suffering.
Elements of a wrongful pregnancy claim
Though not a medical malpractice claim per se, the elements of a wrongful pregnancy claim are very similar. To succeed in such a case, you must establish the existence of the following elements:
- Duty: The doctor owed you a duty to correctly perform the sterilization.
- Breach of Duty: The surgeon performed the procedure negligently.
- Factual and Probable Causes: The pregnancy would not have occurred but for your reliance on the procedure to prevent it.
If you can establish these elements, you may have a case.
Compensation for wrongful pregnancy
The courts are divided on the type of and extent of compensation parents should be able to recover in wrongful pregnancy claims. Most courts can agree that the negligent provider or organization should compensate the parents for expenses directly related to the pregnancy. Those include prenatal care, delivery room expenses, neonatal medical bills, lost wages and the cost of the unsuccessful sterilization process.
If you experienced any mental distress or health complications as a result of the surprise pregnancy, the courts may award you compensation for pain and suffering. Likewise, your partner may recover for any loss of consortium he or she experienced during the pregnancy and recovery period.
Though it has happened before, the courts are unlikely to award compensation for the future child-rearing expenses of an unplanned but otherwise healthy child. However, if your child was born with birth defects, and if risk of those defects was the reason you sought sterilization, the courts may reconsider. The same may hold true if your main reason for seeking sterilization had to do with financial instability.