Wrongful Pregnancy: Suing for a Failed Vasectomy or Tubal Ligation

Having a medical sterilization procedure, such as vasectomy or tubal ligation, always carries an element of risk. If something goes wrong during the process, you could become pregnant or cause a conception. You can sue your healthcare provider for medical malpractice if their negligence led to the sterilization procedure failing and leading to an unplanned pregnancy. This article explains what a wrongful pregnancy claim entails, how to prove medical malpractice, and when to consult a medical malpractice lawyer.

How Can a Sterilization Procedure Fail?

The two most common types of surgical sterilization are vasectomies and tubal ligation. A vasectomy is an outpatient surgery that involves cutting or cauterizing the tubes that carry sperm during sex. Tubal ligation is a slightly more invasive surgery that cuts, ties, or cauterizes the Fallopian tubes that move eggs from the ovaries to the uterus.

Pregnancies after these procedures are rare, but they can happen. Fewer than 1% of patients become pregnant in the year after a tubal ligation. Vasectomies are almost 100% successful at preventing pregnancy after the patient clears the last of the sperm from their body, but a slight chance remains.

Non-Negligent Causes

A tubal ligation seals the Fallopian tubes. It doesn’t remove a woman’s ovaries or uterus. Eggs can still leave the ovaries and travel to the uterus or other parts of the abdomen. If they’re fertilized, they can implant in the Fallopian tube or even the abdominal wall. This is called an ectopic pregnancy, a potentially life-threatening condition.

In some cases, the tubes may heal around the cauterization or suture. This is very rare, but it can happen. To sue for a wrongful pregnancy, you must prove the doctor was negligent.

Negligent Causes

For a successful medical malpractice case, you must show that the doctor failed to complete the procedure or did not explain the risks or possible outcome in a way you understood. In a tubal ligation, the doctor could have misplaced the clamps (known as “Filshie clamps”) used during the process. This can affect the outcome of the surgery.

For vasectomies, the doctor may have failed to explain that it can take several weeks for active sperm to leave the body and the need for follow-up testing to verify sterility. Because sterilization procedures are both common and highly successful, you need clear evidence that the doctor failed in their duty of care to prove a medical malpractice claim.

Proving a Wrongful Pregnancy Claim

A medical malpractice lawsuit seeks damages based on a healthcare provider’s negligence. In a wrongful pregnancy claim, the plaintiff is claiming that the doctor failed to perform a sterilization process according to the medical standard of care, with an unwanted pregnancy as the result.

Medical professionals are held to a higher standard of care than other individuals because of their education, training, and the doctor/patient relationship. The patient trusts the doctor to know how to perform the procedure and to do so properly. Negligence consists of four elements.

• The doctor had a duty to the patient to perform the sterilization according to the accepted medical standard of care, and to explain the outcome and need for follow-up care in a way the patient understood
• The doctor breached that duty by failing to perform the procedure correctly or failing to provide adequate post-procedure warnings and instructions
• This breach was the direct cause of the pregnancy
• The parents suffered actual damages, including monetary and emotional harm, as a result of the unplanned pregnancy

People get vasectomies or tubal ligations to avoid pregnancies for many reasons, including:

• Known risks of genetic health issues (such as Tay-Sachs or Huntington’s chorea)
• Risk of age-related health issues (such as Down syndrome)
• Health risks for older mothers
• Inability to use other forms of birth control
• Insufficient financial resources to raise a child

After the soul-searching, genetic testing, discussion, and consideration that goes into a sterilization procedure, parents may not be overjoyed to learn that they are pregnant.

Available Compensation in a Wrongful Pregnancy Lawsuit

A wrongful pregnancy lawsuit seeks damages for the parents for medical expenses and costs related to the unanticipated pregnancy. It differs from a personal injury claim because it doesn’t seek compensation for damages related to the initial operation.

Damages for a wrongful pregnancy suit may include:

• The cost of the failed sterilization procedure (but not other costs related to the procedure, such as lost wages or time away from work)
• Medical expenses for prenatal care, delivery, and recovery after birth
• Lost wages or loss of income after birth

Parents may have a claim for non-economic damages, such as pain and suffering related to the birth, but also:

• Emotional distress due to the unintended pregnancy
• Genetic counseling if the sterilization was done for potential genetic risks

Other factors may apply.

Birth Injury Claims

A birth injury or wrongful birth claim can be brought on behalf of the infant by the parents. Birth injury claims are a type of personal injury lawsuit in which the parents sue for injuries caused at birth due to medical malpractice. Infants born with shoulder dystocia and some types of brain damage may have claims for birth injury lawsuits.

Wrongful Birth Claims and Wrongful Life Claims

Some states, such as California, New Jersey, and Washington, allow parents to bring a wrongful birth lawsuit. This type of lawsuit alleges that medical negligence prevented parents from making an informed decision about their conception or possible termination of a pregnancy. Compensation for wrongful birth may cover medical expenses, extra costs of raising a child with special needs, and the parents’ emotional distress.

A wrongful life lawsuit is brought by or on behalf of the child, arguing they should not have been born at all due to medical negligence. Most states will not permit wrongful life lawsuits because they violate public policy. Courts have pointed out the legal, medical, and ethical issues in debating a child’s right to a perfect existence, or no existence at all. In some cases, courts have ruled for parents who requested assistance for children with special needs due to medical malpractice. Compensation includes lifetime medical treatment and special education expenses.

Can You Sue for the Cost of Raising the Child?

Most states will not allow parents to sue for the costs of raising their own child, even if it was an unanticipated pregnancy due to a failed sterilization. Courts and legislatures tend to view these lawsuits as counter to public policy. Parents may be allowed to sue on behalf of children with special needs that will extend into their adulthood, without addressing the parents’ or child’s emotional trauma.

In Procanik v. Cillo, a parent sought genetic counseling to determine if her previous infection with rubella (German measles) would protect her unborn infant if she was exposed. When the doctor assured her it would, she went on to carry the infant to term. The baby was born with severe birth defects related to rubella. The parents sued for general and special damages for malpractice, since by 1984 the hazards of rubella exposure were well known. The New Jersey Supreme Court allowed the infant plaintiff to recover extraordinary medical expenses and compensation for his future care related to his injuries.

Proving these cases is very difficult, since courts are reluctant to award damages when parents themselves acknowledge that they would not have used the information to “prepare…for the birth of the…child, but that they would have used the information to prevent that birth.” Even when abortion is legal, courts will generally not rule to encourage it.

Get Legal Advice for a Wrongful Pregnancy Lawsuit

Having a sterilization procedure is the only sure way to avoid conception in most cases. If you or your spouse became pregnant after a medical sterilization procedure, you may have a claim for a wrongful pregnancy lawsuit. A medical malpractice attorney can explain what medical records and other evidence you need to prove your case.