If you follow the news, then you have probably learned of a health concern involving the Zika virus and its purported correlation with birth defects suffered by babies born from mothers who contracted the virus while pregnant. One of the most notable defects that is suspected to be caused by the Zika virus is microcephaly, an abnormally small head and brain portending devastating cognitive disabilities for the baby. While only rare anecdotal cases have occurred in the world thus far, the news media coverage of the Zika virus has raised awareness for the importance of good prenatal care and testing to detect potentially devastating conditions that can occur to the fetus prior to delivery.

In the State of California, the Department of Public Health has recommended that pregnant mothers undergo prenatal screening for birth defects such as Down syndrome, Trisomy 18, Trisomy 13, abdominal wall defects and Spina bifida. This screening typically includes blood tests and an ultrasound evaluation in the first trimester and additional blood tests and another ultrasound evaluation in the second trimester. Ultrasound evaluations can be useful in assessing the fetal anatomy including growth retardation or anatomical defects. If the initial screening reveals findings indicative of a potential birth defect, additional testing such as an amniocentesis, chorionic villi sampling and detailed ultrasound evaluations can be pursued. In addition, the pregnant mother can be referred to a maternal fetal medicine specialist, a genetics counselor and/or a geneticist for a higher level of care. The results of these tests, evaluations and referrals are usually obtained well within the time in which the mother can elect as an option to terminate the pregnancy, typically before the fetal age of 24 weeks.

Understandably, most pregnant mothers passively defer to their obstetricians and specialists on the significance and handling of their prenatal screening. However, incidences have occurred when a health care provider acted negligently during the prenatal screening process, and as a result, failed to appreciate compelling evidence of a potentially serious birth defect. Consequently, the mother, unaware of the birth defects in the fetus, delivered a child with catastrophic disabilities and deformities requiring extraordinary medical care and attention for the rest of the child’s life.

One particular aspect of the prenatal screening process in which such negligence can occur is the performance, interpretation and reporting of the ultrasound evaluations. This technology utilizes ultrasound waves that are emitted through a hand held transducer applied across the mother’s abdomen or perineum. Typically, the ultrasound studies are performed by either an ultrasonography technologist, a radiologist, or a maternal fetal medicine specialist. The actual interpretation of the study is performed by either the radiologist or the maternal fetal medicine specialist. For various reasons including carelessness, inexperience, or distraction, the health care provider can miss obvious findings that are abnormal and thus fail to report the abnormal findings to the referring obstetrician. In turn, the obstetrician fails to recommend further studies, tests and referrals that can better detect and identify the abnormalities affecting the fetus. When this happens, the mother can be deprived of important treatment and therapies that can address the conditions affecting the fetus and can be denied options including an abortion. Consequently, it is important for the mother to have an in-depth discussion with her obstetrician concerning the results of her prenatal ultrasound studies, especially in those cases where there is a family history of birth defects or the pregnancy is considered by the obstetrician to be high risk.

Under these circumstances, the State of California recognizes a statutory right of legal action that the parents and child may have against the health care provider known as wrongful birth and wrongful life, respectively. Simply stated, a parent and child can pursue a legal claim that a health care provider was negligent because the provider failed to inform the parent that the child would be born impaired or disabled, and if the mother had known of the impairment or disability, the mother would not have carried the fetus to term. If proven, the parent and child can recover the cost of past and future medical care in a wrongful life/wrongful birth case. If the child is born with catastrophic disabilities, the cost of such medical care could be valued in the millions of dollars over the life of the child.

While the Zika virus has not risen to the level of a national health risk to pregnant mothers, prospective parents should nevertheless take a more proactive role in pursuing their prenatal screening and interfacing with their health care providers to confirm the results of such screenings and plans for further care. If the care was negligent, the parents and child have legal remedies that should be evaluated by qualified attorneys specializing in the area of medical malpractice law.