Wrongful Birth Lawsuits

[sub]Note: The following post contains a number of great debates. Feel free to select one or more.[/sub]

Under the category of “Damned if you do & damned if you don’t”, we have the story of Shirley Berman who filed suit against her obstrictions for failing to advise her that the fetus she carried was afflicted with Down’s Syndrome. The reason they failed to adviser her of this is that they didn’t perform amniocentesis. See Berman v. Allan.

Why wasn’t this simply a case of medical malpractice?

This case is actually old, but I was prompted to do some searching when I heard last night about another case of a teen with a birth defect suing the doctors for failing to make the pregnant mother aware of the presence of serious birth defects. I don’t know why I can’t find the story I heard last night anywhere online- I’m almost certain it was on CNN. If anybody happens to find the story, please link to it.

If Roe v. Wade certified a woman’s constitutional right to obtain an abortion, then doesn’t the doctor bear some responsibility to advise the woman that she is on the road to a lifetime of burdensome & expensive child care, not to mention teen care & adult care depending on how bad the birth defect is.

Furthermore, if courts start establishing that people born with serious bith defects have a right to sue their own doctors (i.e., the doctors they were personally delivered by) for having brought them into the world with, say, no arms or legs, then how can we deny terminally ill patients the right to be euthanized? At least in the case of (for example) a 75 year old man with terminal cancer, we know from his own words that he wants to be euthanized. In the case of a fetus with serious birth detects, it is unknown what the fetus wants, if it is even possible for it to want anything. But we still lay blame on the obstitrician for withholding information which may lead to an abortion.


I think amniocentesis and other pre-natal tests that search for birth defects are not obligatory in many places. So, if the woman doesn’t especifically ask for one test, the doctor might not order it. Also, amniocentesis and other tests are more recommended according to the age of the pregnant woman. If the woman is young(say, less than 35), a test is not recommended. Of course, all of this is how it is done around here(AFAIK), maybe different states and insurance companies have different laws and policies.

And I think I share your opinion on your last question.

Yes, in a slight majority of American jurisdictions, doctors can indeed be sued for wrongful birth or wrongful life. A good primer can be found here. So yes, in many states there certainly is a duty for doctors to reasonably diagnose birth defects and tell their pregnant patients if any defects have been found.

I do not see moch of a connection between such suits and euthanasia, however. Wrongful birth suits are based not on a refusal to perform an abortion, but on the doctor’s failure to inform the pregnant patient of the fetus’s birth defects or failing to perform the tests that would have revealed such defects. Dr. Kevorkian is not, after all, in jail for withholding information from his patients.

Very interesting post.
I am not pro-life, but I do not like the idea of abortion being used as a form of genetic screening. If the mother has decided to have a baby upon first detection of pregnancy it is disgusting for me to think about her aborting a growing fetus later in her pregnancy because it is not going to be a perfect baby. But, I suppose if I am not pro-life, I am pro-choice, which means that the mother should be given the details necessary to make a decision.

The other point about the kids suing the doctors that delivered them as compared to terminally ill patients requesting to be euthanized…
I think there is a difference between saying, “I wish I was never born”, and saying, “I wish I was dead”. The kid never had the choice of being born…that was up to his/her mother. If we allow deformed children to sue their doctor’s would we then also have to allow suicidal children the same right?? Or even the right to sue their parents for bringing them into the world?? On the other hand, an old person wanting to die is making a CHOICE to end their life.

I share Karl’s opinion on the amniocentesis test being recommended (required?) in only a limited category of pregnancies.

So while it is a doctor’s duty to advise his patient of any possible risks as well as screening tests options, it is not (and should not be) in his power to force the woman to have these tests perfomed (especially since some involve a certain amount of risk to the fetus itself).

It is one thing if the doctor is aware of (or responsible for) a defect of the fetus and fails to notify the mother, it is quite a different thing if the defect is only discovered at time of birth or sometime after (possibly years after like in the case of a learning disability). It is medical malpractice in the case of the former and a frivolous law suit in the latter.

Many years ago, a family member of mine had a late abortion. She had been exposed to German measles, and the doctor (pro-life) ran the tests to see if the fetus had been harmed, but refused to give her the results, telling her “not to worry.” She fought with him for a while, and eventually went to another doctor to have the tests redone. By the time all this was accomplished, she was well into the second trimester.

As the daughter of a doctor herself, she was very averse to filing a malpractice action. As far as I know, the doctor got off scot-free. If she had followed instructions “not to worry” and ended up with a profoundly disabled child, I think a malpractice / wrongful birth action would have been completely appropriate.

More interesting are cases where the doctor causes the parents psychological and/or physical trauma. The moot court case for 1Ls at Harvard a few years ago was this type of action. The facts given: after a miscarriage, H and W have been diagnosed with genetic disorders such that they have a 3/4 chance that any child of theirs will not live through childhood, if by chance it manages to survive until birth. H has a vasectomy. W goes out and gets a high-powered job, where having to take time off to have children and care for them would be a significant barrier to advancement. It turns out that the doctor who performed the vasectomy was negligent, and W becomes pregnant. The baby is healthy, but W must quit her fancy job, throwing their financial plans into disarray. What, if any, should be the liability of the doctor who was negligent in performing the vasectomy in this situation?

If a woman consciously refuses amniocentesis or sonography and as a result gives birth to a disabled child she would have otherwise aborted, she has nobody to blame but herself.

If OTOH the doctor neglects to give her the information she would need to make an informed decision as to whether to have the test, she should at least be compensated for any special costs incurred as a result of the child’s disability.

If he discovers a defect and deliberately refuses to tell her about it, as in ENugent’s story, he should have his license suspended.

Let’s see… H and W did choose to keep the baby (AFAIK), but that doesn’t change the fact that the doctor botched the procedure. At the very least, I’d say that the doctor should refund H’s money and if H still wants to be sterile, pay for another doctor to do it properly.

Short response now - I’ll post more in depth tomorrow

Wrongful life suits by parents - hideous, but possessing some logic. Parents have excess out of pocket expenses for raising a child with birth defects.

Wrongful life suits by the child - hideous and illogical. Where are the damages? But for the doctor’s alleged negligence, the plaintiff wouldn’t be around to sue. Further, by this “logic”, a child could sue his/her parents if they are informed of the birth defect and chose to have the child.
Finally, and only half-humorously, the child has an obligation to mitigate damages. If life is your “damage”, mitigate away. The tall bridge is right over there. Bon voyage.


Yes, that’s correct, and yes, I’d agree that that’s the minimum that they should get. Just to clarify how these moot court things work, they’re appellate arguments to uphold or overturn a mythical district court decision. IIRC, in the problem, the district court awarded some fraction of W’s foregone salary, plus all prenatal costs, plus pain and suffering damages for the months they went through in the belief that the child would probably not live. One side had to argue for full compensation for all childrearing costs to age 18, and the other for nothing but the costs of getting the vasectomy redone. I’m not sure which position I’d care to try to defend - something in the middle seems right, but I don’t know exactly what.

Let me get this straight, the teen is suing the doctors because they didnt tell the parents she would have a birth defect so they could abort her? i don’t think i have heard anything that messed up in a while.

From the link in the OP:

So because the parents derived some benefit from the kid’s existence, the court let the doctor get away scot-free? I don’t like the sount of that. I mean, that’s like saying that if a rape victim has an orgasm during the attack, she shouldn’t be able to collect damages from the rapist.

I am trying to figure out how the court placed a value on love & joy, or could even go so far as to assert that parenthood always results in love & joy.


I think the plaintiff would be trying to say that somebody, the doctor or parents, made the wrong choice. Nevermind that the wrong choice resulted in the birth of the plaintiff. If you can wish yourself dead, why not wish you were never born? I can’t imagine myself in that position, but if I were in that position I might feel fully justified in seeking damages - maybe restitution is a better word - from whoever made the decision to bring a seriously disadvantaged child into this world.

Quoth the child, perhaps: You brought me into this world knowing that I would suffer so?

I would say that if Roe v. Wade certified a woman’s constitutional right to obtain an abortion, then she also has a constitutional right to obtain an amniocentesis. In neither case would it be the doctor’s obligation to initiate.

“Restitution” is precisely the right word. But what restitution means is to put the child in the same position as he/she would have been had not the negligence occurred. But the child wouldn’t have been alive had the negligence not occurred. Absence of life is a null value. The only way money from the doctor can restore the child is if the child’s current life has a negative value. And that would seem to be an impossibility.

As for the “why not wish you were never born?” thought, four responses. First, how does the payment of damages change that? Second, what do we use cash for? To enable us to live our lives. A desire to get cash from the doctor is persuasive, if not conclusive, evidence that the child wishes to live. Third, if the child truly wishes to die, it would seem the only benefit the child gets from suing the doctor is vengence. The courts are not appropriate fora for such a motivation. Finally, the child has a legal option to fix the “problem” - suicide.


There is no constitutional right to medical treatment, although at least in the case of abortion, there is a constitutional right to seek medical treatment (i.e., an abortion). But more importantly, doctors may well be under an obligation to perform disgnostic tests, including amneocentesis. Patients, after all, don’t know how to diagnose themselves, or even when there’s anything they need to check anyway. If the medical standard of care says a doctor should perform amneocentesis on any pregnant patient over the age of <removing number from ass> thirty-five, then it is not the patient’s obligation to ask for the test.

Sua: I think you’re simplifying a bit too much on the question of restitution. Yes, the ostensible point of tort damages is to make the injured person in the same position as if the injury had never occurred. But as a practical matter, you can never truly make a person with life-altering physical injuries whole again. Severed arms and legs do not regenerate, spinal columns do not get fixed, and wrongfully killed people do not come back to life. When tort damages cannot truly put a victim in the same position as if the injury had never occurred, the goal becomes to compensate the person so that their life returns to as normal as possible.

The injury in a wrongful life suit is being born with debilitating defects or illness. Obviously, once you’re born, you can’t really fix that, what with public policy being pretty strongly against infanticide and state-sponsored euthanasia. So at that point, it’s a question of making anybody whose misconduct led to the injury pay damages make the child’s life as normal as possible. It’s not just being born that’s the injury–which is why the kid in ENugent’s hypothetical would never be able to maintain suit–but being born plus having defects or inllnesses that cause the child to suffer.

Hmm…this case is 20 years old. Maybe at that time people knew less about birth deffects and how they were related to the age of the woman. Nowadays, even in the newspapers you find articles about healthy pregnancy saying that the older the woman, the riskier her pregnancy and the more she has to take care of herself and get the tests. So in this age, I would expect more people knowing(without having to go to the doctor) that if they get pregnant after 35, they should definitely take the tests, even if the doctor says nothing of it. My mom had it done in 1982-1983, just 4 years afterwards, because she was over 30. My aunt was the same age as the mother in the law case, and she also had it done about 8 years ago.

About the doctor…yea, I think what he did in this case is malpractice. He must have known the age of his patient, and should have recommended and ordered the amniocentesis.

PD. I am skeptic about the “older the woman gets, greater risk of Down syndrome”. Maybe it is because the women who had the only 2 people I’ve personally known to have Down were under 35 when they had the kids. One was 26-28, about the usually called “best age” to have kids when she had a baby born with Down (I don’t know if she had the test taken, after all, she was under 30 and healthy). She also is skeptic about it, being part of the local association of parents with children who have Down’s syndrome. Sorry if it is a hijack, I just don’t like that phrase.

Well, the statement “The older the woman gets, the greater the risk of Down’s syndrome” was never meant to imply that younger women were immune. Perhaps amniocentesis should be reccomended for all pregnant women?

  1. Being born is the necessary precondition for the alleged injury. Without the birth, there is no injury from the birth defects. But the alternative for the child is to not be born, and the claim against the doctor is “but for your negligence in not diagnosing my birth defects, I would have been aborted and therefore would not suffer these injuries.” Accordingly, the argument is that the child is in a worse condition for being alive. I think that not being born has a null value, so the only way the child could be considered “damaged” by the doctor’s conduct is if his/her life has a negative worth. Regardless of what the child feels about his/her life, I do not think that a reasonably prudent person would consider any human life to have a negative value.

  2. The doctor did not cause the injuries - the doctor simply did not discover the injuries. The cause of the injuries are the parents. Would the child have a claim against his/her parents if they refused genetic testing before conceiving or an amniocentesis while pregnant? Would he/she have a claim if the mother had been informed by the doctor that the child she was carrying had birth defects and decided to continue the pregnancy? If the child’s has a claim against the doctor because he/she was born with the defects, I can think of no reason why the same theory of damages could not be applied to the parents.

In these cases, this is an impossibility - whether or not the doctor had detected the defects, the child was going to have the defects. The alternative was abortion - which was obviously never the child’s decision to make. The doctor deprived the child of nothing.


I agree that the argument is a little bit weird. But I’m not offended by the idea that an injured child or her parents should be able to recover damages for being stuck with injuries that could have been avoided (now THERE’S a good euphemism) through abortion. There’s no question the injuries would not have existed without the doctor’s malpractice, and the alternative is to let the doctor off the hook for misconduct that results in significant expense for the child and her parents, over and above what it would be for a normally healthy child.

Haven’t been keeping up with my arguments in the death penalty threads, have ya? :smiley:

Actually, the doctor’s malpractice is a but-for cause of the child being born with injuries. But for the malpractice, the claim goes, the child would not have been born. So I don’t see a causation problem here. Proximate cause, naturally, is potentially a bit dicier.

Actually, I have heard of suits in which the injured child sues the mother (to get at her insurer’s pockets) for injuries she caused, often via alcohol or drugs. Those aren’t quite the same as wrongful life suits, but they’re at least in the ballpark. You don’t get to sue a woman based on her decision whether or not to abort, but I don’t see why it’s a bad idea to permit suit against those whose misconduct prevented her from making a reasonably informed decision.

But the doctor also cost the child and his parents quite a lot once it was born with defects or illness. To me, those costs should be compensable.

Let me throw a hypothetical at you, Sua. Say I have a terminal disease that will surely cause me to die tomorrow at dawn. I lapse into unconsciousness, so I’m unable to give informed consent. There’s no known cure for my illness, but my doctor gets a flash of inspiration and performs a last-second procedure that saves my life, but keeps me in excruciating pain for as long as I continue to live.

Now the doctor hasn’t deprived me of anything, has he? In fact, thanks to the doctor, I’ve been given many years of life that I would not have otherwise had. But believe me, I’m pissed off about being in excruciating pain, and you oughta see my painkiller bills.

So do I get to sue the guy or not?