Comprised of accomplished litigators, STSW’s Medical Malpractice / Wrongful Death team is led by veteran attorneys Andrew G. Slutkin and Jamison G. White. Over the course of their respective careers, Mr. Slutkin and Mr. White have successfully handled cases for clients who have pursued wrongful birth cases arising out of the misdiagnosis of children born with Down Syndrome. If you were erroneously informed by health care providers that your baby did not have Down Syndrome prior to his/her birth, call our team for a free consultation at 410-385-2225.
Down syndrome is a genetic disorder that causes intellectual and physical developmental delays. It occurs due to an extra copy—full or partial—of chromosome 21. The condition known as Down syndrome is named for John Langdon Down, a British doctor who was the first to describe the syndrome in 1866. Down syndrome is the most common genetic disorder in America; it occurs in approximately one out of every 691 babies. While scientists are uncertain why Down syndrome occurs, research has shown that a woman’s likelihood of giving birth to a child with Down syndrome increases with her age. Approximately 1% of all cases of Down syndrome are hereditary. There is no evidence indicating that environmental factors or parental activities prior to or during pregnancy contribute to the likelihood of Down syndrome.
There are two types of prenatal testing available to determine whether a baby has Down syndrome before it is born. Screening tests, which are less invasive and carry a slight risk of a false-positive diagnosis, determine the likelihood that a child has Down Syndrome; diagnostic tests, which are more invasive and carry a slight risk of miscarriage, provide a nearly 100% accurate diagnosis. In the event that Down syndrome is not diagnosed prior to birth, it is usually diagnosed at birth due to physical symptoms and confirmed by a chromosomal analysis of the child’s blood sample.
Physical characteristics of Down syndrome vary, but tend to include stunted growth, upward-slanted eyes, flattened facial profile, unusually small chin size, a protruding tongue, poor muscle tone, a large gap between the first and second toe. The neurological effects of Down syndrome also vary, but generally include mild to moderate intellectual disability with decreased speech skills and delayed fine motor skills. Individuals with Down syndrome present an increased incidence of congenital heart disease, thyroid disorders, gastrointestinal disorders, low fertility rates, and impaired vision and hearing. Some children with Down syndrome are educated in regular school facilities while others attend special educational facilities. Opportunities for adults with Down syndrome to attend college and seek employment are increasingly available.
Medical malpractice/ Medical negligence litigation by parents claiming “wrongful birth” over the mis-diagnosis of children born with Down syndrome has been successful. Although wrongful birth litigation has historically been controversial, successful claims stand to provide parents with resources that can allow them to provide better care for children born with Down syndrome, care which, without such aid tends to be exorbitantly expensive. However, it is relevant to note that in response to successful wrongful birth litigation, a minority of state legislatures have enacted statutes that ban the initiation of lawsuits claiming wrongful birth. But even some of these legislative attempts have been unsuccessful. In 2012, the Superior Court of Pennsylvania held that the state’s statute prohibiting wrongful-birth actions violated the state’s constitution. Moreover, other states have passed statutes that do not allow wrongful birth actions pertaining to the birth of healthy children, but that do allow wrongful birth actions pertaining to the birth of unhealthy children.