[The concept of characterized malpractice in wrongful birth]

Abstract

Objectives: The law of March2002 was introducing a new concept of liability in the field of prenatal diagnosis, survey and investigations. For wrongful birth, medical physicians are responsible for newborn infants with congenital or hereditary disorder only in a case of characterized malpractices.

Materials and methods: We performed a study about decisions that awarded or refused monetary damages specifically to the parents in the light of this new law. This research was performed by using official court rulings website, crossed in the search engine two expression-keys that were characterized: fault and antenatal diagnosis. Fifteen rulings were reviewed and studied. The matter of our research is to understand how the judges characterize the medical malpractice and insist upon the qualification "Blatant" in the field of prenatal medical liability?

Results: In fact, judicial decisions explicit more what it is not a characterized fault than what it is. Such judicial rejections stated that the medical practices were based on to established medical references and so couldn't be characterized. The taking care, the survey and the biological and radiological investigations of the pregnancy were evaluated in accordance to the knowledge of science although they didn't diagnose fetal malformations. Only four rulings accepted this kind of medical fault, focused the notion of medical neglect accompanied with hurriedness for some judges when physicians performed in particular antenatal echography. In these circumstances, the physician performed quickly and without interest the medical investigations which missed to detect fetal malformations. Two rulings of them categorized the malpractice by the inversion of results, and by the no information about unusual margin of error for cellular culture. The judge argued that negligence of health-care-providers denied to the parents the psychological preparation of hosting disabilities newborn. In this point of view, the judges want to damage parent's injuries.