Wednesday, April 11, 2012

Arizona senate approves law barring wrongful birth/wrongful life and wrongful conceptions claims

About two months ago I reported that that lawmakers in Arizona were considering a ban on “wrongful birth” lawsuits.  Now comes news that the state senate has approved the law.  Jonathan Turley has a comment here.

The issue raised by this topic is complicated because there are different types of claims, some of which are justified and some of which are not.

First, the terms wrongful birth and wrongful life are most often used to refer to claims based on the allegation that the defendant (usually a doctor) was negligent and did not alert the parents of a child of the possibility of genetic defects, birth defects or abnormalities in the development of a fetus, thus depriving the parents of the chance to decide to terminate the pregnancy.  Thus, the conduct of the doctor resulted in a "life" that could have been avoided.  The "injury" caused by the doctor is "life itself."

There are differences of opinion as to whether these claims should be rejected, but there was no need to adopt a law to do so.  To my knowledge, courts have consistently rejected general wrongful birth/life claims as against public policy, among other reasons, because life, no matter how difficult, should not be considered to be an "injury" and because even if it could, it is too difficult to assess the value of the alleged injury because it is impossible to assess the value of the alternative (non-life).

The problem with the Arizona bill is that in trying to eliminate those claims, it also eliminates other claims which are justified.  

For example, some courts have recognized a cause of action for out of pocket expenses related to the pregnancy and child birth that would have been avoided had the defendant not been negligent.  These cases are justified and should be allowed to proceed.  The negligent conduct of the defendants does cause the need for these expenses and there is no valid reason to immunize the defendants from liability for them.

Somewhat more controversial are the cases that have recognized claims for the expenses needed to take care of a child born with birth defects at least until the age of majority.   You can make the argument that these claims are not justified, and should be banned, because they allow a plaintiff to recover for an injury that was not actually caused by the defendant.  The defendant's conduct resulted in the birth of the child, not in the birth defect.  But you can also argue the causing the birth of a child with defects means causing the expenses that could have been avoided. 

Finally, the Arizona bill is so vaguely worded that it would also bar claims for wrongful conception even though these claims do not seem to be the types of claims originally considered by the drafters of the bill.  These are cases where the defendant is negligent in performing a procedure to prevent future pregnancies.  When parents decide not to terminate undesired pregnancies they should have the right to recover for the added expenses caused by the negligence of the doctors which should certainly include the costs of the pregnancy and child birth and, you could argue should also include the costs of raising the child to the age of majority.  These claims are purely financial and their value can be calculated relatively easily. More importantly, the injury is clearly caused by the negligence of the doctor.

There is no valid reason to provide negligent doctors with immunity from these claims, which is exactly what the Arizona bill does.  The bill eliminates the right of a plaintiff to recover for damages when they are clearly caused by the negligence of the defendant.

No comments: