A failure to diagnose fetal malformations can leave parents with a difficult and painful question: not only whether an examination was performed correctly, but whether information received in time would have allowed a different choice in compliance with the law. I will explain which conditions make a compensation claim possible and why the presence of a malformation, by itself, is not enough.
The central point is not to formulate a judgment on the child's life. The protection concerns the loss of an informed choice, the health of the pregnant woman, and the financial or personal consequences resulting from proven healthcare negligence. We will see how the stage of pregnancy, the type of anomaly, available tests, the mother's will, and clinical documentation affect the situation.
Compensation does not arise automatically from a missed diagnosis
A malformation discovered after birth does not, by itself, prove healthcare liability. It must first be ascertained that, during pregnancy, the practitioner or facility omitted an indicated examination, incorrectly interpreted a result, delayed a necessary follow-up, or withheld useful information about the fetus's conditions and the limits of the examination performed.
The compensation claim is often referred to by the English expression wrongful birth, meaning unwanted birth resulting from a diagnostic or informational error. However, it is essential to use this formula with precision: there is no right for the child not to be born unless healthy. The Joint Sessions of the Court of Cassation have excluded the action of the born child founded on the so-called "wrongful life"; the parents' position instead concerns damages linked to the violation of their self-determination and, when the conditions are met, the loss of the opportunity to resort to the termination of pregnancy in the cases provided by law. Civil Review of the Court of Cassation 2015
The error must be concretely avoidable. A prenatal examination may have technical limits, specific time windows, and margins of uncertainty. For this reason, the verification does not stop at comparing the report with the subsequent diagnosis: what matters is establishing whether, in that week of gestation and with the information available at the time, diligent conduct would have required a different assessment, a specialist referral, a different reading of the images, or a more complete communication.
The timing of the diagnosis changes the possibility of choice
The date on which the anomaly could have been known is decisive. Law no. 194 of 1978 regulates voluntary termination of pregnancy within the first ninety days and thereafter in different ways. In the first period, Article 4 requires a serious danger to the woman’s physical or mental health, assessed also in relation to economic, social and family circumstances, the circumstances of conception, and anticipated fetal anomalies or malformations; beyond that phase, the discipline becomes more restrictive. Law of May 22, 1978, no. 194
After the first ninety days, Article 6 of the same law does not allow termination merely because the fetus presents an anomaly. A serious danger to the physical or psychological health of the woman is required; among the situations considered by the rule are pathological processes, including relevant anomalies or malformations of the unborn child, capable of determining that danger. The connection between the fetal condition and the health of the pregnant woman must therefore be proven in the specific case.
The Court of Cassation has specified that, beyond the ninetieth day, it is not strictly necessary for the malformation to be already clinically ascertained if a pathological process capable of causing, with appreciable probability, relevant anomalies and a serious danger to the woman's health is ascertained. Not only the name of the pathology counts: its predictable impact on the pregnant woman's health matters, evaluated with medical data referring to that situation. Court of Cassation, judgment no. 653 of January 15, 2021
Once the fetus is capable of independent life, the limit becomes stricter. Under Article 7 of Law no. 194, termination is permitted only where pregnancy or childbirth poses a serious danger to the woman’s life, and the doctor must take every appropriate measure to safeguard fetal life. Malformation alone or danger to mental health is insufficient at this stage. A separate assessment remains possible for concrete harm caused by the failure to provide information.
What parents must prove
Inexact or incomplete healthcare provision
The first step is to reconstruct what happened during pregnancy. Relevant elements include, for example, prescriptions, ultrasound and genetic reports, images when available, requests for follow-up, informed consents, and communications regarding the need for further tests. These elements help understand whether the anomaly was detectable, whether there were signals requiring checks, and whether the pregnant woman received understandable indications about risks and alternatives.
An apparently reassuring report does not automatically close the matter. The information must be useful for the choice: if a test is statistical, not definitive, or reveals a risk requiring a more accurate examination, communication cannot be reduced to a generic formula. At the same time, a falsely negative result does not prove fault by itself: it is necessary to distinguish the avoidable error from the intrinsic limit of the available technique.
The link between omission and lost opportunity
It must then be proven that a timely diagnosis would have opened a concrete possibility provided by law. In practice, the judgment reconstructs what would have happened if the malformation or risk had been communicated at the correct time: which examination could have been performed, when its outcome would have arrived, and whether, on that date, the legal and healthcare conditions for a choice on continuing the pregnancy existed.
This reasoning is not an abstract supposition. Obstetric and gynecological documentation places examinations in time; technical consultation can clarify the detectability of the anomaly and the appropriate diagnostic pathway. The delay can be decisive even without an execution error of the examination, when a necessary further check is omitted or a doubtful outcome requiring deep investigation is not reported.
The will of the pregnant woman
The willingness to terminate the pregnancy is not automatically presumed. The mother must prove that, if informed correctly and in a timely manner, she would have exercised the faculty recognized by law. This is a counterfactual proof: it concerns a choice that could not be made because the information was missing or arrived too late.
Proof can also be provided through simple presumptions, meaning concrete facts from which the judge derives, through logical reasoning, the choice that would have been made. No single clue decides by itself: the search for prenatal examinations, information requested from healthcare providers, contemporaneous communications, family plans, and clinical circumstances can all assume relevance. The Court of Cassation has clarified that clues must be examined separately and then as a whole; it is not correct to isolate a single subsequent behavior, such as the refusal of a test, without evaluating its context. Court of Cassation, order no. 18327 of June 27, 2023
The decision on the termination of pregnancy belongs to the pregnant woman. The father does not substitute that personal choice, but he can be involved in the reconstruction of the facts and, if the breach has produced immediate and direct damages also in his sphere, he can bring forward his own compensation claim.
What damages can be compensated
Compensation does not have a single item nor a predetermined amount. Non-pecuniary loss for the violation of self-determination and, if proven, damage to the mother's psycho-physical health may come into consideration. The judge must identify real and specific consequences, avoiding overlapping different items that describe the same prejudice.
When the causal link is proven, financial losses may also be relevant. Higher expenses must be linked to the child's condition and documented or assessable with reliable criteria: assistance, care, aids, educational interventions, or other needs exceeding the ordinary maintenance of a healthy child. The Court of Cassation has traced pecuniary loss back to the differential between ordinary maintenance and the higher expenses imposed by severe pathologies. Digest of the Court of Cassation, judgment no. 13 of January 4, 2010
The father may also have an autonomous position. The Court of Cassation has recognized that compensation, in an unwanted birth vicenda linked to a healthcare error, can be granted not only to the mother but also to the father, since responsible procreation involves rights and duties of both parents. This does not eliminate the need to prove the requested damage and its link with the breach. Civil Review of the Court of Cassation 2018
Documents and steps to consider
The clinical chronology is the starting point. It is useful to preserve and organize medical records, reports, diagnostic images, prescriptions, discharge letters, genetic test outcomes, documents relating to birth, and certifications regarding the child's care needs. The sequence of dates allows understanding when the anomaly was detectable and whether there was effective time to investigate and decide.
A medico-legal evaluation serves to distinguish the undetectable malformation from diagnostic or informational omission. It is not enough to compare the report with the final outcome: it is necessary to connect the information available at that precise moment to the applicable diligence rules and the consequences the error produced. For financial damages, proofs of expenses already incurred and concretely foreseeable future needs are also useful.
For civil healthcare liability disputes, Article 8 of Law no. 24 of 2017 provides a preliminary condition: recourse to preventive technical consultation for conciliation purposes, pursuant to Article 696-bis of the Code of Civil Procedure, or alternatively, mediation. The preliminary attempt does not impose an agreement, but serves to technically verify the dispute and seek a solution before the merits trial. Text of Article 8 of Law no. 24 of 2017 published in the Official Gazette
It is not advisable to wait for a fully complete response before reconstructing documents. The availability of contemporaneous images, reports, and notes can significantly affect the proof. If you want guidance on a specific case, you can contact me with an essential chronology of examinations and diagnosis.
Frequently Asked Questions
Can I claim compensation if the malformation was not visible on a normal ultrasound?
Not necessarily, but the claim is not automatically excluded. It is necessary to understand whether, based on available information, a different examination, a more accurate check, or a specialist referral was indicated. If the malformation was truly undetectable with the tools and during the period considered, one of the essential elements of liability is missing.
Does a missed diagnosis always give me the right to terminate the pregnancy?
No: the conditions change during pregnancy. Within ninety days, Article 4 requires serious danger to physical or mental health on its specified terms; thereafter Article 6 imposes stricter requirements. Once independent fetal life is possible, Article 7 permits termination only for serious danger to the woman’s life. Malformation alone is insufficient.
Do I have to prove in writing that I would have terminated the pregnancy?
No, a prior written declaration is not indispensable. Will can also be proven through concrete circumstances evaluated as a whole, such as requests for examinations, information received, contemporaneous communications, and the path followed. However, it is not enough to state after birth that the choice would certainly have been different.
Can the father also claim compensation?
Yes, he can propose his own claim when he demonstrates immediate and direct damages attributable to healthcare breach. His position does not replace the pregnant woman's choice regarding the termination of pregnancy, which remains personal, but may include pecuniary and non-pecuniary consequences proven in the specific case.
What documents are most important to start?
Documents that fix dates and information received are most useful. Medical records, reports, images, prescriptions, screening outcomes, and diagnostic tests allow reconstructing the path. Documents relating to the diagnosis after birth and, for financial damages, proofs of expenses and care needs must also be considered.
Guidance before choosing how to proceed
A compensation claim requires holding medicine and law together. The claim becomes clearer when distinguishing four profiles: the avoidable error, the date when a correct diagnosis would have been possible, the conditions provided by law for the pregnant woman's choice, and the concrete damages to be proven. Reconstructing these points carefully allows addressing a delicate vicenda without simplifying it or transforming a doubt into a certainty.