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.

Update on the litigation related to the new regulations on cigarette warnings

Next Tuesday, the federal appeals court in Washington will hear arguments on two related rulings by a Federal District Court judge, Richard Leon, blocking implementation of the new labeling plan. As reported by the Newy York Times, Judge Leon concluded that the government’s prominent use of emotionally charged images “calculated to provoke the viewer to quit” smoking crossed a line. They went from conveying uncontroversial factual information, he said, to compelling tobacco firms to advance the government’s “obvious anti-smoking agenda” in violation of their free speech rights.

The New York Times has published an article criticizing the lower court's opinion and arguing for its reversal.  It starts by stating that "[t]he tobacco industry has never been bashful about fighting back against attempts to regulate the promotion of its deadly, addictive products. The latest is an effort to derail new regulations requiring large health warnings on cigarette packages by making baseless First Amendment claims"  It ends by arguing that reversing the lower courts ruling "should be an easy call."

The Blog of the Legal Times has more on the story.  For all my previous posts on this subject go here (where the posts are in reverse chronological order.)

New Hampshire considers "early offer" program in medical malpractice cases

The TortsProf blog is reporting that the New Hampshire Senate has adopted an early offer approach to medical malpractice that would allow a patient to initiate the early offer process.

According to an article in the Union Leader,  Senate Bill 406 establishes an “early offer” program in which a medical provider would have to offer a settlement to an aggrieved patient within 90 days. The settlement would be based on medical costs and lost wages, while limiting pain-and-suffering damages, from $1,700 for minor harm to $117,500 for grave harm. Participation in the program would be voluntary for patients.

The fact that the program is voluntary is a good thing, but given the incredibly low caps on damages it would seem its utility would be very limited.

Aside from that, as with all early offer programs, another main problem is that the program is basically unfair to the plaintiffs in one basic respect.  For the defendant to be able to make a reasonable offer, the plaintiff has to provide the defendant with all the available information before the defendant has to offer any in return.  In other words, the system is flawed in that it depends on the plaintiff disclosing all its evidence before getting the benefit of doing discovery.  It is this one sided discovery function that have resulted in similar proposals to be abandoned in other jurisdictions in the past.

Of course, as you would expect, the rhetoric is always the same and the attack on the plaintiffs' bar is vicious.  Take a look at the comments under the Union Leader article for example.  Unfortunately, many of those comments are misinformed as I have documented many times over the last two years here.

Defendants' group cries foul

Defendants' groups and lawyers (especially in medical malpractice cases) love to lobby for the imposition of measures that operate as barriers to plaintiffs' attempts to recover for their injuries - like certificates of merit or early offer requirements.  But when something is proposed to impose new requirements on them, they cry foul!

This was the case recently in Illinois when the Cook County Circuit Court Law Division designed a pilot program that forces defendants to disclose trial experts at the same time as plaintiffs.  Saying no issue “so galvanized” its members, the state’s largest defense bar group protested and called for the program to be dropped.  Go here for more on this story.

New article on tort reform

The Pop Tort has posted (here) a summary of a new article called "The empirical effects of tort reform,” written by Cornell Law School Professor Theodore Eisenberg.  The article is available here.

Summary of the law regarding claims against manufacturers of generic drugs

Continuing our coverage of the developments in the area of claims against manufacturers of generic drugs, here is a link to a helpful summary of the state of the law by the Drug and Device blog.

Several states consider constitutionality of damages caps

Last week, the Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  The Springfield News-Leader has the details.

Meanwhile, at about the same time, a federal judge ruled that Texas's cap on non-economic damages in medical malpractice cases is not an unconstitutional taking of private property.  For more information go here and here.

Likewise, as reported here, that the Louisiana Supreme Court upheld statutory limits on medical liability damages awarded by juries.

(Thanks to the TortsProf blog for some of these links).

Judge Awards $77M in Back-to-Back Rulings Against Iran for 1983 Bombing

Last week, U.S. District Chief Judge Royce Lamberth issued a $44.6 million judgment against the Iranian government for its role in the 1983 terrorist bombings at the U.S. Marine barracks in Beirut, Lebanon. The ruling came a week after Lamberth issued a $33.3 million judgment against Iran in a similar case.  Go here for more information and links to the decisions.

Decisions on the constitutionality of the cigarette warnings regulations might be headed to Supreme Court

A few days ago I reported on two recent decisions on the constitutionality of the regulations that require cigarette manufacturers to place graphic images as part of the required warnings in cigarette packages.  (see here and here).  Circuit Splits is reporting today that the issue might be headed to the Supreme Court soon.  Go here for the article.

Another NYT article about generic drug cases

Here is a link to another article/editorial in the New York Times criticizing the effects of the Supreme Court's decision in Pliva v. Mensing.  It starts by saying "[d]ozens of suits against drug companies have been dismissed in federal and state courts because of a decision by the Supreme Court last year that makes it virtually impossible to sue generic manufacturers for failing to provide adequate warning of a prescription drug’s dangers. This outrageous denial of a patient’s right to recover fair damages makes it imperative that Congress or the Food and Drug Administration fashion a remedy"  You can read the full article here.