Wrongful Birth — Updated July 24, 2007Posted by Sobek in Law.
A Florida couple was just awarded $21 million dollars by a jury in a “wrongful birth” case.
The couple claimed that Dr. Boris Kousseff failed to diagnose their first son’s genetic disorder, called Smith-Lemli-Opitz syndrome, which is the inability to correctly produce or synthesize cholesterol, after his 2002 birth.
Had the disorder been correctly diagnosed, a test would have indicated whether the couple’s second child also was afflicted and they would have terminated the pregnancy, according to the lawsuit.
Wow. More commentary to follow…
Update below the jump
Courts are seriously split about the rights of unborn children. For example, Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901 (1969), involved a car accident in which a woman’s two unborn children were injured, and then delivered stillborn. The New York court held that the unborn children had no right to recover in a wrongful death action, because in order to “die,” one must first be born alive, and these fetuses never were. “[T]he law has never considered the unborn foetus as having a separate ‘judicial existence’ or a legal personality or identity ‘until it sees the light of day.'” Judge Burke, dissenting, noted that the rule created an anomaly: “For example, a doctor or midwife whose negligent acts in delivering a baby produced the baby’s death would be legally immune from a lawsuit. However, if they badly injured the child they would be exposed to liability.”
Starting in 1946, Courts have overwhelmingly recognized lawsuits for injured fetuses who are born alive. Today, a majority recognizes a wrongful death claim for an unborn child (in at least one state, Massachusetts, the issue turns on whether the fetus was viable at the time of injury). Some states even allow claims for injuries to the mother before conception that result in damage to the child, such as an 8th Circuit case where a woman’s botched caesarian in one pregnancy caused brain damage to the fetus in her next pregnancy.
In Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984), the court addressed a “wrongful life” claim. The doctors negligently failed to diagnose that the mother had contracted German measels during the first trimester, so the child was born with congenital rubella syndrome. The child was born with eye lesions, heart disease, and auditory defects. “Alleging that the doctors negligently deprived his parents of the choice of terminating the pregnancy, he seeks general damages for his pain and suffering and for ‘his parents’ impaired capacity to cope with his problems.’ He also seeks special damages attributable to the extraordinary expenses he will incur for medical, nursing, and other health care.”
The New Jersey court allowed the claim. It had previously upheld the right of parents to recover anticipated future medical expenses (“wrongful birth”), and it extended the law to allow the child itself to recover for birth defects caused by another (“wrongful life”). The court rejected the reasoning in a previous case that “[m]easurement of ‘the value of life with impairments against the nonexistence of life itself’ was … a logical impossibility.” But the court also noted that the issue of damages was a real one, and declined to allow general damages — only the cost of extraordinary medical expenses were available. By contrast, a New Hampshire court in Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986), rejected wrongful life claims, noting that it “has no business in declaring that among the living are people who should never have been born.”
It appears that very few jurisdictions allow an action for wrongful life, such as California, Washington and New Jersey. Nevada does not allow a wrongful life action. See Greco v. U.S., 111 Nev. 405, 893 P.2d 345 (1995)(but allowing an action for wrongful birth, which is merely a species of medical malpractice). Some state legislatures have passed laws forbidding the claims.
Another interesting line of cases are called “wrongful pregnancy” cases, where the woman has conceived because of the negligence of the defendant. The child is not necessarily handicapped, but is not wanted. For example, a Massachusetts court allowed a wrongful pregnancy action in Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990), in which a man was not informed of the risk of recanalization after a vasectomy, and a Wisconsin court allowed an action in Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990), in which a doctor botched a “laparoscopy with bilateral fallopian tube cautery.” Both cases allowed not only the costs of the childbirth and related medical procedures, but also the costs of raising the children when the reason for the sterilization was economic.
Finally, I will mention the very curious case of Martinez v. Long Island Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 512 N.E.2d 538 (1987). A woman asked her doctor whether a certain medication, taken early in her pregnancy, had adversely affected her fetus. The doctor ran some tests and determined the baby would be born with either microcephaly (a small brain) or anencephaly (no brain). The woman generally believed that abortion is a sin, but justified under certain circumstances such as severe physical problems like those incidental to microcephaly, so she decided to have an abortion. After the procedure, she learned that the doctor had misdiagnosed her, and that the baby would have been fine. She sued for emotional distress, and the New York court allowed the lawsuit.