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Wrongful Life

child born action birth

A type of MEDICAL MALPRACTICE claim brought on behalf of a child born with birth defects, alleging that the child would not have been born but for negligent advice to, or treatment of, the parents.

Since the early 1970s, TORT actions for wrongful life have been filed in U.S. courts. In a typical wrongful life action, the parents of a child born with birth defects sue on behalf of the child. Generally, the parents sue their doctor or a medical testing company for NEGLIGENCE, claiming that the failure to diagnose an illness in the mother—for example, rubella in the early stages of pregnancy—prevented the opportunity for the mother to have an ABORTION. As a result, the child is born with impaired health.

Essentially, the child alleges that because of the defect, he would have been better off not being born at all. To bring a wrongful life action, the defect must be one that could only have been averted by preventing the birth of the child; otherwise the child would bring an ordinary negligence action. Other types of defects that can be diagnosed early in pregnancy include Tay-Sachs disease, sickle cell anemia, neurofibromatosis, and Down's syndrome.

Only a small number of states permit wrongful life actions. The many courts that have rejected wrongful life claims have cited two general reasons. First, the courts are reluctant to hold that a plaintiff can recover damages for being alive when the law and civilization in general have placed a high value on the presence of human life, not on its absence. Second, the basic rule of tort compensation is that the plaintiff is to be put in the position that she would have been in if the defendant had not been negligent. This is impossible in wrongful life actions because the contention is not that in the absence of negligence by the defendant, the plaintiff would have had a healthy, unimpaired life, but rather that if the defendant had not been negligent, the plaintiff would not have been born.

The computation of damages in a wrongful life action is based on the claim that the value of the life of the disabled child is less than the value of never having been born. The California Supreme Court, in Turpin v. Sortini, 31 Cal.3d 220, 182 Cal. Rptr. 337, 643 P.2d 954 (1982), stated that the wrongful life action is another form of a medical MALPRACTICE action, and that recovery should not be allowed for pain and suffering and other general damages, but rather only for those extraordinary medical and other expenses incurred during the child's lifetime.

FURTHER READINGS

Prenatal Injuries and Wrongful Life: Practice Guide. 1993. Rochester, N.Y.: Lawyers Cooperative.

CROSS-REFERENCES

Wrongful Birth; Wrongful Pregnancy.

Wrongful Pregnancy [next] [back] Wrongful Discharge

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