Many folks have an aversion to lawsuits in general. Perhaps more folks have an aversion to suing doctors and nurses. But there is one type of medical negligence lawsuit that perhaps is the most morally thought provoking – the type of lawsuit that arises when parents sue a health care provider because they had a child.
Actually, these are two different lawsuits. “Wrongful birth” is an action brought by the parents when they believe a health care provider was negligent, and as a result of the negligence, they had a child with significant impairments. The parents are saying, in effect, that they should be living in a world in which the child had not been born.
Concurrently is a “wrongful life” action, which is based upon the same negligence, but it’s on behalf of the impaired child.
The negligence giving rise to these claims can take many forms. Perhaps a genetic test was performed incorrectly, and the parents are told that the fetus doesn’t have a genetic abnormality when in fact it does. Perhaps a man had a negligently performed vasectomy, and as a result his wife gets pregnant when they wanted no more children.
The negligence in these cases does not give rise to particularly vexing moral questions. After all, if you perform a lab test and never tell the parents of the result, or tell them the wrong thing, or do the test wrong, you should be held accountable for the harms that you cause.
But it’s the harms – a child – that create the moral questions. After all, isn’t a child a blessing? How can you sue someone when the result is a baby?
Interestingly, each state has developed its own law on the issue of wrongful birth and wrongful life claims. Currently, about half of all states allow people to sue for wrongful birth. But only three states allow a cause of action for wrongful life brought on behalf of the impaired child. Washington is one of them.
Why does Washington allow these claims? For one, our state has determined that it’s important health care providers have a duty to exercise reasonable care in providing parents with accurate information that allows them the right to prevent the birth of a defective child. That is important because with that deterrent, our citizens will be safer when it comes to genetic counseling and prenatal testing.
For another, it allows for those wronged by this negligence to be compensated. This includes not only the economic harms associated with the child’s impairment. In addition, parents can claim non-economic damages as well – the pain, suffering, and emotional distress of having the impaired child, but also considering any benefits the parents have from having the child. That may be a difficult calculation for a jury to make, but it makes sense. After all, most parents in such a situation still love and deeply care for their child, even if they are suing because he was born.
Of note, the child him or herself cannot claim non-economic damages.
If you have any interest, terrific Washington State trial lawyer Todd Gardner obtained a $50,000,000 verdict in a wrongful birth/wrongful life case recently. The case name is Wuth v. Laboratory Corporation of America, and the case cite is 189 Wn. App. 660.
