Monday, February 13, 2012

Arizona considers ban on wrongful life lawsuits is reporting today (here) that lawmakers in Arizona have proposed a ban on “wrongful birth” lawsuits to prevent parents of children born with birth defects from seeking compensation from doctors or medical providers through a malpractice lawsuit over failing to recognize or diagnose the problems before the child is born.  From this language it appears the bill would not affect the right to recover in cases where the negligence of the doctor actually causes the injury to the child.  We are talking about cases where, the injury to the child is actually caused by something else - a genetic issue, a condition of the mother, etc.

This is an interesting bit of news, but without more information it is difficult to assess how important it really is.  Here's why:  the term "wrongful birth" is often used to mean different things depending on the type of injury claimed in the case.  Often, courts use the term to refer to a claim by parents to recover for the emotional distress that results from having a child the parents would rather have avoided.  The issue is often explained through a cause in fact analysis like this: had it not been for the negligence of the doctor, the parents would have terminated the pregnancy and the child would not have been born.  Thus, the negligence caused a birth that was not wanted. To my knowledge, no court has recognized such a claim because courts do not like the idea of saying that not having been born is better than having been born, or because life, no matter how bad, is better than non-life or because there is no way to assign a monetary value to the notion of not having been born.

On the other hand, courts have recognized a cause of action for parents in these cases for actual damages and out of pocket expenses related to the pregnancy and child birth that would have been avoided had the defendant not been negligent.

In addition, some courts have also allowed recovery for the expenses needed to take care for the child, at least until the age of majority.

If the bill in Arizona seeks to ban or prevent the first type of claim, it is a not a big issue because those claims are generally rejected anyway.

If the bill seeks to ban the second type, it is a big issue because the bill would be attempting to eliminate the right of a plaintiff to recover for damages that were clearly caused by the negligence of the defendant.

It is the third type of claim, however, that is the most interesting.  You can make a convincing argument that since the negligence of the defendant does not cause the condition of the child, the plaintiff can't establish cause in fact in support of the claim for the medical expenses related to the condition of the child.    If this is the basis for the bill in Arizona, it does raise an interesting issue that many courts have ignored when allowing parents to recover.

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