Wrongful Birth Lawsuits

assumming you have no relatives who can make the decision for you (along the same lines of “do we pull the plug or not?”), it depends on what the doctor knows. if the doctor knows you will experience severe pain throughout the rest of your life and goes ahead and performs the procedure without first discussing the matter with the hospital’s administration (they’ve got to have someone who deals with this sort of thing), then yeah, he might be liable. if he doesn’t know, then it’s a hard sell, mostly because you were going to die at dawn, and the defendant’s lawyer will argue it was the solution in question or death, and that of the two, his client made the right choice within a very tight time frame.
if there was some sort of malpractice involved (i.e., it was some sort of slip of the hand that caused your pain), you can nail his ass to the wall.
it’s the tight time frame thing that helps the doctor - in a tight time frame, he can make all sorts of arguements saying that this was the only way to save you or something. most juries would see a doctor who was just trying desperately to help a patient.
but whatever - i’m kinda shooting from the hip here.
then again your question was “do i get to sue him?” hell, yeah, no matter what, you get to sue him. that’s the easy part. winning that lawsuit is the hard part, and it’s completely in the hands of the jury, which may or may not see things your way.
i know this was meant for sua, but i just felt like jumping in.

In the Berman v. Allan lawsuit, the parents are the one who are suing the doctors (and I think the term is obstetrician, or something more similar to that than obstrictions). Also, they are older and the doctor should have known it was his duty to recommend the tests. He did wrong, and in this case it is the parents seeking compensation for the costs of rearing the kid.

In the case of the teen, there is no information about the age of the parents (unless it is in the link minty provided, and I got lost in that webpage). If the parents were like in the first case presented in the OP, then it was again malpractice or misinformation on the part of the doctors. If the parents were younger, and the woman had a healthy pregnancy, chances are the tests were not recommended, therefore no way of knowing the birth deffects. Therefore the lawsuit is baseless.

minty, I have no argument with the parents having a “wrongful birth” suit against the doctor. I personally find it disgusting and would never represent a parent wishing to bring such a suit, but the parent has actual damages - the parent ends of paying more out of pocket for the expenses of a child with birth defects as opposed to a healthy child.

But as for the child …

Disagree. The doctor’s malpractice is part of the chain of causation, surely, but there are two problems. First, the true “but-for” cause is the parents genetic abnormalities (or whatever else) that resulted in the birth defects. Second, there is the issue of intervening causation - if the doctor had found the defect and informed the parents, it would still have been the mother’s decision as to whether to have the kid (and therefore “cause” the injury.)

Why can’t the child sue the mother? Putting aside the alcohol/drug issue, the issue for the child is that somebody allowed me to be born with birth defects. If the doctor informed the mother, and the mother still had the child, the but-or and proximate causation shifts to the mother. Doesn’t the “injury” still exist? If the injury exists, shouldn’t the child have a cause of action? Conversely, if the child doesn’t have a cause of action against the mother, doesn’t that mean that the child hasn’t been injured?

This leads to a second problem - how is the doctor or the parent supposed to know before birth that the child wouldn’t want to live with the defects? Would the Reasonably Prudent Person be able to say “well, this kid’s not going to have arms - he’d rather not exist”?

As for your hypothetical - your situation is not hypothetical at all, it happens all the time. Someone comes into the ER after a car accident, and their neck is broken. They are unconcious, and no family members are around to give consent. The ER docs save the guy’s life, even though they know the guy will be a quadraplegic. The guy has no cause of action against the doctors, even if he does not wish to live as a quadraplegic. That’s close enough to a life of excrutiating pain to answer the question.



Amniocentesis has a 1% chance of sparking a miscarrige.

Accoring to Britannica:

So young women are 10X more likely to miscarry a healthy baby than they are to discover that the baby they are carrying has Downs. 1% is a pretty low chance in poker, but signifigant when you are talking about miscarrige.

Sorry for the delayed response, Sua. The wrongful life tort is admittedly difficult to conceptualize, so I wanted to make sure I was a little more precise in the formulation of my argument than I probably was above.

In my hypothetical, I was trying to go for something more extreme than saving the life of a patient in an emergency situation who’s going to end up paralyzed. I think the reason such patients don’t get to sue is because the doctors haven’t done anything to violate the standard of care. What I’m trying to get at is a real horror movie scenario. You know, Dr. Frankenstein saves a patient from certain death, but it could only be done by keeping the patient’s brain alive in a vat full of electrified ginger ale, that sort of thing. (Hey, get out of this thread, Tom Servo!) Circumstances where no reasonable physician would have thought preserving the patient’s life was the correct thing to do. Under your approach, there can be no injury because the alternative was non-existence. Personally, I think it’s reasonable to find an injury even though death was the only other possible outcome.

Naturally, there’s the question of who gets to decide when death is preferable to extending life. Normally, the person who gets to answer that question is the patient. In the case of a dying but conscious adult, the doctor has to obtain informed consent. Thus, the patient can weigh his options and decide “I’d rather not be paralyzed at the end of this operation, even though it will save my life. No surgery, Doc.” If the doctor operates anyway, or never bothers to obtain informed consent in the first place, the patient has one hell of a tort suit, despite the fact that the doctor’s actions preserved his life.

When the patient is a pregnant woman, however, the equation is a little more complicated. Fetuses can’t give informed consent. But their mothers can do so, and in fact they have the legal right to make those decisions on behalf of their unborn offspring. By failing to perform tests that the standard of care says the doctor should perform, or by withholding relevant information about the fetus’s health, the doctor has denied the mother the opportunity to make a fully informed decision on behalf of her unborn child. If that child is born with a serious defect or illness as a result of the doctor’s misconduct, the doctor is liable to the child every bit as much as the doctor in the last paragraph would be, assuming the jury agrees that there has been a compensable injury.

OK, under your new scenario there is a cause of action. However, it differs from the wrongful life situation in two crucial details. First, in you scenario, no reasonable physician would have acted that way. In contrast, fully informed and consented births of children with birth defects happens all the time. Second, in your scenario, the doctor causes the patient to have his head plopped into the ginger ale. In the wrongful life scenario, the doctor allows (through negligence or otherwise) the child with defects to be born.

A question, as I’ve never run across the following fact pattern: What if a person previously informs his kin that he doesn’t want to live as a quadraplegic, but when he is brought into the ER with a broken neck and is unconscious, his relatives tell the doctors to save his life? Obviously, he has no cause of action against the doctors, who acted appropriately, but does he have a cause of action against his relatives?

If yes, could this analysis apply to the parent/child situation? Could there be a determination that a reasonably prudent person could forsee that the child would not want to live with the defects, and therefore the parent acted negligently in bringing the child to term?

I think the difference is that the defect was pre-existent. In your scenarios, the doctor took affirmative action that caused the patient to be alive in the unwanted circumstances. In the case of a wrongful life suit, the child, if born, is going to have the injury. Since the only existence ever possible for the child is one with defects, that is the child’s “quality of life”.


Hey, is it my imagination or are we actually making a little progress here? :slight_smile:

Sure. But a reasonable physician would not have failed to perform the prenatal testing or withhold information from the mother, either, which is the tortious conduct at the heart of a wrongful life suit. We’ve got actionable conduct in both scenarios, so I don’t think that distinguishes them.

Ah, but I’d argue that the doctor does cause the child to be born with defects. But for his tortious conduct, the mother would have chosen to terminate the pregnancy, thereby preventing the child’s birth. That’s not the direct, 1:1 kind of causation that everybody’s comfortable with, but it’s still causation to me. And there are analogous circumstances in which we say that failing to intervene to prevent an injury from happening is actionable. (And remember, I’m conceptualizing the injury as “being born with birth defects” here.) Think of the infamous Tarasoff case for instance, or any number of cases where parents or spouses had a duty to control the behavior of their family members. Doctors do, to my mind, have a duty of care towards their patients broad enough to require them to inform their patients about impending bad stuff so the patients can decide whether or not to allow it to happen.

Unless the relatives were dealing with something unforeseen by the injured person, I’d say yes, he’s got a cause of action against them.

No. Unlike the situation you just described, where the patient stated his wishes in advance, there is no way to know what the deformed or sick fetus wants. Since we can’t know the future child’s wishes at the time the future of the pregnancy must be decided, we give the woman who’s pregnant the power to make that decision. It may turn out to be a good or bad decision, but it’s one that she is privileged to make. The analogous situation would be one in which the injured man has not told his family what to do in the event of a life-altering injury, and they decide to have the doctors save his life. In that case, they’ve acted reasonably and the injured person has no cause of action against the family.

…wading into middle of discussion, then wading off topic…

I recently ran across a case out of the 14th District Court of Appeal in Texas. HCA v. Miller, 36 S.W.3d 187 (don’t know writ history). The opinion was dleiverd on December 28, 2000 and can be downloaded as a pdf from the court’s web page at http://www.14thcoa.courts.state.tx.us/Opinions/122800/opinions.html

In this case, parents sue a hospital for not letting their baby die. The child was premature and approximately 23 weeks old, with an estimated pre-birth weight of 629 grams. The parents didn’t want any heroic measures performed. Their doctor informed them that if the child appeared viable and weighed more than 500 grams at birth, the hospital would treat the child. The parents reiterated their request not to treat their child. Then:

The parents sued and the jury awarded damages in the following amounts:

Then, a paragraph where they work on telling the parents to take a hike.

Finally, the court decided the parents should take nothing, because the hospital did not owe a duty to the parents. It seems to me, they decided that the child wasn’t terminal, so the doctors were allowed to treat her against the parents wishes and the parents and let the parents foot the bill.

wading downstream now…

Nope, no progress whatsoever - you have utterly failed to bow to my superior intellect as of yet. :smiley:

No, the mother could have chosen to have an abortion. At the very least, a ruling against the doctor in a suit by the child would require testimony from the mother along the lines of “yep, I would have aborted the little runt in a second had the doctor told me of the defects.” Once again, the issue comes back to mom and causation. If being born with defects is the injury, allowing mom to make this decision for the fetus is enshrining in law the right of the mother to harm her child without allowing the child redress for the harm.

But this turns “injury” into a non-objective standard. If the mother is informed and decides to continue with the pregnancy, the child is not injured, even though the same defects would be the “injury” if the doctor is negligent? Where’s the logic in that?

Final point, which occurred to me after reading the case leibfels linked (thanks, BTW, very interesting case): Where is the duty to the child that the doctor is violating? Remember, at the time of the doctor’s negligence, the child is a fetus, and accordingly is not a person under U.S. law. The doctor cannot have a duty to something that legally does not exist, and without such a duty, cannot be said to have negligently abrogated that duty. Ergo, no tort and no cause of action.
This issue has already been explored thoroughly in the DES cases.


liebfels: I’d thought of linking to the Miller case too. Interesting case, that’s for sure. The petition for review is still pending before the Texas Supreme Court.


That’s not a bad description of the state of the law. It’s awful hard to make a mother liable to the child for anything she does during pregnancy. My point, however, is that before birth (or at least the third trimester, depending on what the hell Roe and Casey mean and individual state laws) the mother acts on behalf of the child in deciding whether it is preferable to live with injuries or not to live at all. That’s a tough decision, and one that we usually leave up to the injured or sick patient. But once that decision has been made, we respect the wishes of the patient. If the patient would rather be allowed to pass on, but the doctors intervene anyway, that may be a compensable injury.

In the case of a pregnant woman, she stands in for the unborn child in deciding whether the patient would be better off alive and disabled or not there at all. If mom would have decided that junior is better off paying a visit to the local Planned Parenthood clinic, but the doctor has negligently or intentionally prevented her from having the information she needed to make that decision, then the child’s being born with defects or illnesses becomes a compensable injury–just as a doctor would be liable to an adult patient who was denied the information necessary to decide whether to go through with life-saving treatment that would also result in an undesirable quality of life.

::shrug:: Who ever said “injury” had to be objective? If so, we can pretty much throw pain and suffering damages right out the window. Not that a lot of insurance companies would miss it, but I don’t see anything conceptually wrong about damages for pain and suffering, even though those are about as subjective as it gets.

Patients must be able to make informed decisions about their diagnosis and treatment, even when the only other option to treatment is death. Existence is not always preferable to non-existence, but the person who gets to decide is the patient or, if s/he is incapable of deciding, the patient’s guardians or represenantives. If their wishes are not followed, or they are unreasonably denied information that would have caused them to choose non-existence, then they’ve suffered an injury that should be compensable.

Besides, where’s the logic in a rule that says doctors can do anaything at all as long as it’s necessary to keep the patient alive?

Regardless of whether a fetus is recognized as a person, it’s certainly possible to have a duty of care to a fetus. Shoot, we can put a guy in jail for three years for chucking a dog into oncoming traffic, and a dog sure isn’t human. It’s been a long time since I looked at a DES case, but I really cannot imagine that a physician has no duty to a patient’s unborn child. Heck, even those Bendectin cases (the drug alleged to have caused birth defects in Daubert) revolved around whether the drug actually harmed the kids before they were born, not whether the manufacturer had a duty to the fetuses exposed to the drug.

Personally, I see huge problems with pain and suffering damages, and I think they should be eliminated. On a conceptual level, I think it is ridiculous to give economic damages for a non-economic loss. On a practical level, they have begun to act as a substitute for punitive damages, without the higher level of proof required for punitive damages. But that’s a different debate.

Again, no argument from me as regards the parents.

Regardless of whether a fetus is recognized as a person, it’s certainly possible to have a duty of care to a fetus. Shoot, we can put a guy in jail for three years for chucking a dog into oncoming traffic, and a dog sure isn’t human. It’s been a long time since I looked at a DES case, but I really cannot imagine that a physician has no duty to a patient’s unborn child. Heck, even those Bendectin cases (the drug alleged to have caused birth defects in Daubert) revolved around whether the drug actually harmed the kids before they were born, not whether the manufacturer had a duty to the fetuses exposed to the drug.

Bad analogies all around. The dog is property, and the crime is property damage. No duty was owed to the dog, but to the owner. In the DES and Bendectin cases, the damages were caused by the drug to the mother, and result of the injury was a child with birth defects.


I could be wrong, but I believe the charge against the dog killer was animal cruelty, which doesn’t have a thing to do with the animal’s status as property or its ownership. The (criminal law) duty not to chuck a poodle into the path of a semi is owed to the dog, not to the owner.

As for Bendectin and DES, where’s this damage to the mothers you say they were claiming? Sure, they were probably asking for the additional costs of raising a disabled child, but those damages could just as easily be conceptualized as belonging to the child. And I don’t think there’s any sort of requirement for parents to continue to provide for their disabled children even after they reach adulthood, so I doubt those post-adulthood expenses would have been recoverable on the mothers’ behalf anyway. Apart from the injury to the fetus, I can’t think of anything that was an injury specific to the mother.

Well, maybe pain and suffering. :slight_smile:

Yep, it was animal cruelty, not destruction of property: http://www.cnn.com/2001/LAW/07/13/roadrage.dog/index.html

I’ll try to find some good doctor’s-duty-to-fetus cases tomorrow.

I found what looks like the best summary in Texas case law regarding the duty owed to unborn children. This is from Delgado v. Yandell, 468 S.W.2d 475, 476-77 (Tex. Civ. App.–Fort Worth 1971), writ refused, no reversible error, 471 S.W.2d 569 (Tex. 1971):

It’s since been established that there is no cause of action on behalf of the injured child unless it is born alive (but parents can still recover for emotional distress and such), and that the mother herself owes no tort duty to the child. But as far as I can tell, it’s still the law down here that, at least in certain circumstances, doctors and other third parties can be liable in tort to the child for prenatal injuries.

I withdraw my duty argument.
I still don’t agree about whether the child was actually injured by the doctor. In the cases you rely on, the doctor/pharmacist, through affirmative acts, caused the defects.
In any event, I think it is horrendous public policy to allow a cause of action by a child when the doctor, through negligence or otherwise, created the circumstances in which the child existed in the first place. Let the mother sue.


Hey, in all fairness, whether there was a duty to a duty to a fetus was apparently an open question down here for a while. And it’s not like I did a 50-state search, so state law may still take different approaches.

I’d largely agree with you that it makes more sense to let the parents sue, except that I’m not sure the parents would be entitled to recover enough damages to keep the kid taken care of his entire life. Since their legal responsibility presumably ends when the child reaches adulthood, they may not be entitled to recover sufficient funds to continue the child’s care. If that is the case, then the fiction of allowing the child to sue will at least take care of that problem.

BTW, Texas rejected wrongful life suits back in the mid-80s, so my interest in this is purely academic. :wink:

I thought in cases where the child is born with Down’s syndrome or other birth deffect, the parents could claim the child as a dependent as long as the child needed help, even if the “child” becomes an adult(by age, at least).

This does not state how the doc was negligent. No procedure is guaranteed 100%. Most practitioneers would have informed their client that it was successful a certain percentage of the time (something less than 100%). The fact that a pregnancy occurs after a vascectomy does not by itself show negligence.

Everyone agrees that doctors are not gods and that they are arrogant when they demand defferance to their position. Since infallibility is a devine attribute, we cannot demand both human humility and devine infallibity from the same beings.

This thread is interesting. Coincidently, not two hours ago, I was reading Procanik by Procanik v. Cillo which was a 1984 case exactly on point here. Woman with rubella not informed due to negligent reading of charts, sues doctor for son’s deformities. Strangely, the case passed the statute of limitations and the SCt. of NJ purposely ignored it when making their decision, which I disagree with.
Their opinion was that both the child and parents could sue the doctor. Dissenting opinion was that “man does not know whether non-life would have been preferable to an impaired life.”

FTR, Sua, I agree with your position. But I disagree with one of your disagreements with minty. It’s this:

True, it would have been the mother’s choice. And if she had the knowledge and still chosen to keep the baby, then she shouldn’t be allowed to sue. In the same way as a person cannot sue a doctor for failure to explain all reasonable medical alternatives if they wouldn’t have chosen those alternatives anyway. BUT, if she would have aborted and didn’t because she didn’t have the knowledge, there’s your but-for. There’s your causation.

That may be true when they choose to support the child–as the vast majority choose to do, I’m sure–but I don’t know whether the parents are legally obligated to provide support for their disabled children. I’m pretty sure the answer to that is no. If I become paralyzed in a car wreck tomorrow, my parents are not required to pay my medical bills, so I don’t see why the rule would be any different for an adult child who was disabled from birth.

And the N.J. Supreme Court is on my side? The most ridiculously activist court in the nation? Ick! I might have to rethink my position. :wink: