Wednesday, July 21, 2010
2 - Special Liability Rules – Prenatal Harm (Wrongful Life, Wrongful Birth, Wrongful Conception)
2. Special Liability Rules – Prenatal Harm (Wrongful Life, Wrongful Birth, Wrongful Conception)
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL. IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR. IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
Now that we have looked at the topic of professional negligence, we turn to the last topic in Special Liability Rules, Prenatal Harm (Wrongful Life, Wrongful Birth, Wrongful Conception).
The bottom line is this: When a child is born alive, most courts now allow recovery for prenatal injury, even if that injury was inflicted before the child was viable. The problem case is the wrongful death claim for a stillborn fetus or a fetus that, though born alive, never attained viability in the sense that it could be expected to sustain life for an appreciable time independent of the mother.
Wrongful Life is an action by the child (or someone, like the parents, on behalf of the child) who suffers horrible defects – “I should not have been born.” The Plaintiff is the child and the damages are the cost of the child's support. Any recovery belongs to child and lasts a lifetime.
Wrongful Birth is a claim by the mother (or father or both mother and father) that she would have terminated the pregnancy had she been properly advised and that because she was not so advised, she must care for a seriously damaged child and damages are the costs of child's support. The Plaintiff is the Mother/Father/Parents. Any recovery belongs to the Mother/Father/Parents and lasts until the child attains the age of 18 years, generally.
Wrongful Conception is a claim by Mother/Father/Parents against a health care provider who negligently performs a pre-conception procedure and a healthy, but unwanted child is conceived and born. The Plaintiff is the Mother/Father/Parents and damages are those directly related to the pregnancy and birth, including pain and suffering as well as corrective procedures, lost wages and loss of consortium, if available in that state. Damages do not include, in most states, recovery of costs of raising the child, though there is great controversy over this topic.
Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.