Pregnant women are not checked for disability of their child

Higher Regional Court Frankfurt / Main: Doctors have to pay damages

If doctors do not examine an expectant mother for a severe disability, they may later be liable to pay compensation. If the parents later build a necessary new home because of their disabled child, the doctors must therefore also take over the incurred interim financing costs because of their treatment error, the Higher Regional Court (OLG) Frankfurt am Main ruled in a judgment published on Monday, October 1, 2018 (Az. : 8 U 181/16). For a faultless treatment during pregnancy, the mother would have made a termination of pregnancy.

In the specific case it was about a faulty pregnancy care. The treating physicians did not investigate if the child is disabled, contrary to the treatment contract during the mother's pregnancy. The mother finally gave birth to a daughter with trisomy 18 and severe bodily deformities. The child died of his underlying disease at the age of three.

The daughter could not hold her upper body and head properly because of her disability, nor eat, crawl and run. Since the condominium could not be converted for the disabled and was accessible only by stairs, the parents decided to build a home when the child was two years old. At this point, the parents were expecting their second child.

The construction was financed with a loan until the sale of the condominium. The intermediate financing costs in the middle five-digit amount demanded the parents now as damages from the treating physicians. These had carried out a faulty pregnancy care and did not investigate whether the child was disabled in the womb. Thus they were taken the possibility of an abortion.

The OLG approved the parents right. In a correct pregnancy treatment, the mother would have aborted the child. The parents had decided "due to the severe disability of their daughter ... and not because of another child comprehensive family planning ... to give up the condominium and build a family house in the immediate vicinity," said the Higher Regional Court.

The new home was also necessary. Because the old apartment was only accessible via several stairs. There was also no parking near the apartment. In addition, the handicapped daughter could only be transported on a heavy special stroller with which only with great effort the stairs could be overcome.

The daughter had also suffered from illness-related nocturnal restlessness that was "accompanied by a significant noise." Because of the disturbances and disturbances of the neighbors, the parents had been exposed to strong psychological pressure. This also required home ownership. Renting a handicapped accessible apartment was not an option. fle