Las Vegas Wrongful Birth Lawyer – Guidance for Victims

Wrongful birth in Nevada is a medical malpractice claim that you bring against your doctor for allowing or causing your baby to be born with a disability. Wrongful birth is an entirely different professional negligence claim from “wrongful life”, which is where the special needs child themself sues the doctors: Nevada law currently does not recognize wrongful life claims, only wrongful birth ones.

A classic wrongful birth scenario is an obstetrician failing to tell you that your amniocentesis came back positive for Downs Syndrome or another life-altering disorder. Had the doctor not failed to warn you of the results of these prenatal tests, you might have aborted the fetus.

Then your baby is born, leaving you emotionally and financially unprepared for the lifelong ramifications of having a special needs child. So you sue the doctor for wrongful birth in pursuit of financial compensation to help pay for child care and medical expenses.

In this article, our Las Vegas personal injury attorneys discuss:

• 1. What is wrongful birth in Nevada?
• 2. Who can I sue for it?
• 3. How do I prove wrongful birth?
• 4. What money can I get?
• 5. What is the statute of limitations?
• 6. Can special needs children sue for wrongful life?
• Additional reading

1. What is wrongful birth in Nevada?

Wrongful birth is a legal claim in which you allege that a medical provider either:

2. Who can I sue for it?

Typical defendants in wrongful birth cases include your obstetrician and any other health care providers who:

• failed to inform you of your fetus’s disabilities or what they entail, or
• injured your baby prenatally or during birth.

Depending on where your doctor works, you could also sue the hospital, clinic, and/or medical group associated with the doctor.³

3. How do I prove wrongful birth?

A wrongful birth claim is a type of medical malpractice claim in Nevada. In these situations, you will need to prove the following elements:

1. The doctor owed you a legal duty. This means that there must have been a doctor-patient relationship between the parties.
2. The doctor breached that duty. The breach may have occurred when the doctor misdiagnosed a serious medical problem or if the doctor failed to properly warn or explain the risks associated with giving birth to a child with a serious medical condition.
3. You or your child suffered some type of harm or injury. Generally, this harm is having a child with a serious birth defect or medical condition. In some cases, it is enough to claim you were harmed when you were deprived of the chance to make an informed, intelligent decision about whether to terminate the pregnancy.
4. The doctor’s mistake caused the injury or harm. Had the doctor’s actions not fallen short of professional standards, you would not have been harmed.⁴

The major evidence in these cases includes the doctor’s medical records and notes as well as any recorded conversations between the doctor and you. It is perfectly legal in Nevada to record your medical visits without the doctor knowing.⁵

4. What money can I get?

If you bring a wrongful birth action in Nevada, you can pursue the following damages:

• Past and future medical expenses for medical treatments throughout your child’s life;
• Special educational costs; and
• Pain and suffering, including your emotional distress.

Note that you can seek compensation for medical care to cover expenses even after your child reaches the age of majority. According to Nevada case law, courts look at how long your child will be dependent on you – which may be for the extent of your child’s life.⁶

5. What is the statute of limitations?

The statute of limitations to bring a wrongful birth lawsuit in Nevada is the sooner of:

• 3 years from the date the doctor caused the disability; or
• 2 years after you discovered – or should have discovered – the disability.

In many cases, a disability is clear right after birth. Sometimes, a disability does not manifest until months or years later.⁷

6. Can special needs children sue for wrongful life?

No, Nevada law does not recognize the claim of wrongful life, which is where special needs children sue the medical establishment for allowing them to be born.

In justifying its refusal to entertain wrongful life claims, the Nevada Supreme Court explained:

Recognizing this kind of claim [wrongful life] on behalf of the child would require us to weigh the harms suffered by virtue of the child’s having been born with severe handicaps against “the utter void of nonexistence”; this is a calculation the courts are incapable of performing.

So although you can bring a claim for wrongful birth, your child has no grounds in Nevada to bring a claim for wrongful life.⁸

Additional reading

For more in-depth information, refer to the following scholarly articles:

• The Disabling Impact of Wrongful Birth and Wrongful Life Actions – Harvard Civil Rights-Civil Liberties Law Review. 
• Better Off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims under the Americans with Disabilities Act – Tennessee Law Review.
• Wrongful Life and Wrongful Birth: The Devaluation of Life with Disability – The Journal of Public Policy, Administration, and Law.
• Courts and Wrongful Birth – Americans with Disabilities.
• Legal Ableism, Interrupted: Developing Tort Law & Policy Alternatives to Wrongful Birth & Wrongful Life Claims – Disability Studies Quarterly.

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Legal References