Can You Sue if Prenatal Tests Miss a Serious Birth Defect? Understanding “Wrongful Birth” Cases

Expectant parents are often told that prenatal testing exists to give them information and choices. So, what happens when that promise fails: when a test is skipped, a result is misread, or a risk is never disclosed, and a child is born with a serious condition no one saw coming? 

Some families assume the outcome was simply unforeseeable. Others suspect something was missed that shouldn’t have been. Ontario law draws a careful line between the two. Understanding it starts with a concept that few people have heard of until they need it: the wrongful birth claim.

The Legal Distinction Most People Miss: Wrongful Birth vs. Wrongful Life

There are two phrases that usually get used almost interchangeably in medical malpractice online discourse, and they shouldn’t be.

• A wrongful birth claim belongs to the parents. It rests on the argument that, had they received accurate information, they would have made a different decision about the pregnancy. Also, the failure to provide that information caused them compensable harm.
• A wrongful life claim is different. It would belong to the child, and is built on the idea that the child should never have been born at all. Canadian courts have consistently declined to recognize that second claim, largely on the reasoning that no court will treat non-existence as preferable to a life lived with disability. Ontario case law has reinforced this boundary repeatedly. The practical effect is that the law focuses on what the parents lost, not on the child’s existence, and that distinction shapes who can sue and what they can recover.

Where the Failure Actually Happens: Three Points of Breakdown

Generic explanations of prenatal testing miss where liability actually arises. In practice, Ontario claims tend to cluster on three points.

1. 1. The first is a failure to offer or refer for testing in the first place. This could play out as when a family physician doesn’t refer a patient for genetic counselling despite known risk factors like maternal age or family history.
2. 2. The second is a failure to properly interpret or communicate results already obtained. Sometimes, it amounts to misdiagnosing a low-risk finding when the underlying data suggest otherwise.
3. 3. The third, and often the most contested, is a failure to clearly disclose risk so that parents can exercise a choice. A result buried in a chart, risks mentioned in passing, or a referral that never happens can all affect a decision that a parent should have been able to make.

These reflect patterns that arise in real Ontario claims, not merely hypothetical scenarios.

What Ontario Law Requires Parents to Prove

A wrongful birth claim is still a negligence claim. This means that four familiar elements apply, shaped by the unique context of pregnancy and prenatal care. Parents must show the following:

• The physician owed a duty of care.
• The standard of care was breached (measured against what a reasonably prudent OB/GYN, family physician, or genetic counsellor would have done in the same circumstances).
• Damages resulted.
• The crucial element that tends to decide these cases is causation.

It isn’t enough to show that a result was missed or a misdiagnosis occurred. Parents must also establish that accurate information would have changed their decision about the pregnancy. That’s a different and more personal kind of proof than in most negligence claims, and it’s where these cases are most often won or lost.

The Damages Question That Courts Still Disagree On

Even where negligence and causation are both established, Canadian courts haven’t settled on a single approach to calculating damages.

Some decisions have allowed recovery for the full extraordinary costs of raising a child with major care needs. Others have drawn narrower lines based on what counts as a compensable loss versus an ordinary cost of parenthood.

This inconsistency isn’t unique to wrongful birth claims, as it reflects a broader, yet still-evolving debate in Canadian medical malpractice law about how to value loss tied to a child’s lifelong care.

For families weighing legal action, it’s a reminder that how a claim is framed and presented matters just as much as whether negligence occurred at all.

The Evidence That Makes or Breaks Medical Malpractice Claims

Strong wrongful birth claims are built on specific and gatherable evidence, such as:

• The prenatal medical records and test results themselves.
• Documentation showing what risks were or weren’t disclosed at each appointment.
• Expert opinion establishing what the standard of care actually required, including whether a misdiagnosis fell below that standard.

• Evidence of what the parents would have decided had they been properly informed. Usually, this comes from their testimony alongside the broader context of their stated intentions.

Finally, claims involving a child with a serious condition require detailed evidence of the long-term care needs and costs that the family now faces. Each piece serves a different part of the legal test, and missing one can weaken an otherwise strong case.

The Clock Is Already Running: Time Limits Families Don’t Realize Apply

Ontario imposes a two-year limitation period on most claims of this kind, but the clock doesn’t necessarily start at birth.

Under the discoverability principle, it begins when a parent knew, or reasonably should have known, that a missed result or undisclosed risk was connected to a negligent act. This can be well after a diagnosis is finally understood.

Claims involving children may be subject to different limitation rules. Families who assume too much time has passed sometimes still have a viable claim, and families who believe they have plenty of time can be mistaken. Either way, it’s a question worth raising with a lawyer early, rather than guessing.

When Answers Matter Most, Sommers Roth & Elmaleh Are the Advocates Families Trust

Cases like these demand both expert legal knowledge and lawyers who understand the weight of what a family is carrying. At Sommers Roth & Elmaleh, we have spent decades building a reputation as one of Toronto’s most established medical malpractice firms. We have specific experience guiding parents through birth defects and other similar medical malpractice claims.

If you suspect that a missed or mishandled prenatal result changed the course of your pregnancy, talk to us. Our legal team can review pre-natal misdiagnosis or events that happened, explain where you stand, provide available litigation options and achieve the best possible results. 

For more information, call Sommers Roth & Elmaleh at 1-844-940-2386 or book a free consultation online.

Some of the outcomes we’ve secured for families facing similarly devastating diagnoses include:

• Over $6 million recovered after a family physician’s failure to carry out conventional pregnancy screening led to a missed diagnosis.
• Over $7.1 million was awarded after an obstetrician ignored a pre-eclampsia diagnosis, which resulted in a brain-damaged baby.

Frequently Asked Questions

• Can I sue if a screening test came back falsely “low risk”?

Possibly. If the standard of care required different testing, interpretation, or follow-up, and the right results would have changed your decisions, then this may support a claim worth discussing with a medical malpractice lawyer.

• Does a doctor have to tell me about every possible prenatal test?

Not every test, but you’re entitled to be informed of options relevant to your specific risk factors. This includes age or family history, so you can make a genuinely informed choice.

• What if the hospital, not my doctor personally, made the error? 

Hospitals can be liable for system failures, such as lost results or breakdowns in communication between departments. It is separate from any individual physician’s conduct.