Wrongful Life

[Camikaze]

For those who don't know, wrongful life cases are those where an individual sues a doctor, for example, because the doctor's negligence (e.g. in not telling parents of a handicap) has caused the individual to be born, whereas they otherwise wouldn't have been (i.e. they would've been aborted). Now obviously anti-abortion advocates are going to be against such cases, but I imagine there'd be a split amongst pro-choice advocates, because it's a fairly tricky issue.

So what do you think? Should someone be able to sue for wrongful life?

This isn't an abortion thread, so don't discuss it specifically. There are plenty of other threads in which to do that.

 

[Samson]

For those who don't know, wrongful life cases are those where an individual sues a doctor, for example, because the doctor's negligence (e.g. in not telling parents of a handicap) has caused the individual to be born, whereas they otherwise wouldn't have been (i.e. they would've been aborted). Now obviously anti-abortion advocates are going to be against such cases, but I imagine there'd be a split amongst pro-choice advocates, because it's a fairly tricky issue.

So what do you think? Should someone be able to sue for wrongful life?

This isn't an abortion thread, so don't discuss it specifically. There are plenty of other threads in which to do that.

I find it hard to imagine any parent initiating such a case. What would it say to the child about their self worth?

I think the main change that these cases will result in will be doctors not giving a yes/no answer to the in utero tests but give the result as a probability, and leave it to the parents to make the decision.

 

[Camikaze]

Do you mean a parent initiating such a case on behalf of their child, or initiating a wrongful birth case claiming damages for themselves?

 

[Samson]

Do you mean a parent initiating such a case on behalf of their child, or initiating a wrongful birth case claiming damages for themselves?

I mean a parent initiating such a case. This is the only example I have heard of (in Israel).

 

[Camikaze]

But that's just a simple case of the parents claiming for the costs they've incurred (or will incur) as a result of someone else's negligence, which is a rather pragmatic move, not a statement on what they perceive the value of their child to be.

That's wrongful birth, though, not wrongful life. I don't think wrongful birth is nearly as contentious as wrongful life.

 

[Souron]

Medical malpractice suits are in need of reform, and this would fall into that catigory. In the present enviroment I'd discurrage all such lawsuits.

 

[Old Hippy]

Well with the new national disability insurance scheme being rolled out... it would lessen the need to sue, to get money to support the child long term, so I voted no with this in mind
it seems most of the parents sue to support the child something anti abortion people say society will take care off if only the child is born... sadly this rarely happens...

 

[azzaman333]

I'm not sure there's anything to be gained from suing in this case. And how would you prove negligence from the doctor?

 

[Arwon]

But that's just a simple case of the parents claiming for the costs they've incurred (or will incur) as a result of someone else's negligence, which is a rather pragmatic move, not a statement on what they perceive the value of their child to be.

That's wrongful birth, though, not wrongful life. I don't think wrongful birth is nearly as contentious as wrongful life.

That's what I voted yes based on.

 

[Samson]

But that's just a simple case of the parents claiming for the costs they've incurred (or will incur) as a result of someone else's negligence, which is a rather pragmatic move, not a statement on what they perceive the value of their child to be.

That's wrongful birth, though, not wrongful life. I don't think wrongful birth is nearly as contentious as wrongful life.

These are the examples I have heard about, as they were reported in new scientist (requires login to read more than the first couple of paragraphs I am afriad). EDIT: I read that articale a good while ago, and aparently they use the same definition as you, so I was talking about wrongful birth.

It seems the statement being made by the law suits are "Having this child is so much worse than not having it that the doctor that made the in utero diagnosis should compensate the parents for not having an abortion. Does that not sound like one is making a negative value judgement on the childs life?

What do you mean by wrongful life?

I'm not sure there's anything to be gained from suing in this case. And how would you prove negligence from the doctor?

What is to be gained is a shed load of cash (from the link above: "a couple in California won $4.5 million in damages"). It seems to me that the bar is pretty low, basicly if the doctor carried out a test (eg. amniocentesis) and did not detect the problem then they can be held liable. That is why I think doctors will start quoting probabilities, ie. report result was X (whatever the machine reports) which equates to a probability of 98% of there not being downs syndrome (or whatever). Then if there is downs pressent the doctor can say "well I said there was a chance". I do not know enough about law to say if this would work, but it seems reasnoble to me.

 

[Camikaze]

I'm not sure there's anything to be gained from suing in this case. And how would you prove negligence from the doctor?

The negligence of the doctor is the easy bit; did they miss something they should've spotted or not? It wouldn't be all that different in this type of case to any other medical malpractice case.

What do you mean by wrongful life?

Where the child sues saying that they should've been aborted. So, for example, if a doctor fails to spot that a prospective mother has rubella, so doesn't tell the parents, who consequently don't seek to abort, a wrongful life claim is one where the child sues, saying that they should not have been born, seeking damages on the basis that they have to live a life of severe handicap. The argument being that their tortuous existence is the result of the doctor's negligence, so they should be compensated accordingly. It's probably worth remembering that when we say "the doctor", we mean "the doctor's insurer". This is probably a bigger issue in places where there wouldn't be adequate coverage to otherwise allow the child to have themselves cared for (as Graffito flagged by noting the NDIS).

Wrongful birth is where the parents sue because they have to bear the costs of a child they otherwise wouldn't have had. It's less contentious, but why should the parents be able to sue for what is essentially their child's condition, if their child should not?

That is why I think doctors will start quoting probabilities [...] I do not know enough about law to say if this would work, but it seems reasnoble to me.

It's probably worth noting that, here at least, doctors kinda have to do that anyway.

 

[azzaman333]

What is to be gained is a shed load of cash (from the link above: "a couple in California won $4.5 million in damages"). It seems to me that the bar is pretty low, basicly if the doctor carried out a test (eg. amniocentesis) and did not detect the problem then they can be held liable. That is why I think doctors will start quoting probabilities, ie. report result was X (whatever the machine reports) which equates to a probability of 98% of there not being downs syndrome (or whatever). Then if there is downs pressent the doctor can say "well I said there was a chance". I do not know enough about law to say if this would work, but it seems reasnoble to me.

I meant from a societal standpoint, rather than an individual one. It seems to me that it'll be used by mothers who may have been heavy drinkers during pregnancy, or smokers, or whatever, and they'll blame the doctors for the consequences to the child.

 

[Traitorfish]

They could blame the consequences on the Quetzalcoatl if they wanted, that doesn't mean that it will actually get to a court room.

 

[Samson]

I meant from a societal standpoint, rather than an individual one. It seems to me that it'll be used by mothers who may have been heavy drinkers during pregnancy, or smokers, or whatever, and they'll blame the doctors for the consequences to the child.

If you are saying people should not be able to sue for this, we are in agreement.

They could blame the consequences on the Quetzalcoatl if they wanted, that doesn't mean that it will actually get to a court room.

Unfortunately (IMO) these cases are making it to the courtroom, and winning.

TWrongful birth is where the parents sue because they have to bear the costs of a child they otherwise wouldn't have had. It's less contentious, but why should the parents be able to sue for what is essentially their child's condition, if their child should not?

I guess it is it the difficulty in putting a monetary value on the difference between living with a disability and not living at all. It makes me very uncomftable when anyone is asked to make such a decision. When this decision makes healthcare more expensive for everyone, I think it is wrong.

It sounds a bit like an argument to the extremes, but if someone can make this case (I would rather have never lived than had to live this life), why would it be wrong for the court to hand the plaintive a gun and say "deal with the problem yourself then" (ie. commit suicide)?

 

[Patroklos]

Its a bizarre concept but if it were to be allowed it should be a case brought on behalf of the child, not the parents, and all awards should go to the child (managed trust?) and not to the parents.

Also, wouldn't you have to prove abortion was a desired option to persecute the lawsuit? Would have could have should have, I wish I could use that logic based on stock trades...

Has anyone had success with lawsuits based on broken condoms? Seems analogous to me.

The follow on from this is allowing children to sue their parents for a bad upbringing if we are allowing people to sue for negligence causing difficulties later in life. If you are in therapy at 25 as a results of your parents why should they not be financially responsible for it?

 

[Mise]

So to be clear:

Wrongful Life lawsuits are brought by the child (or on the child's behalf) against the Doctor, claiming that the Doctor's negligence lead to the child living with a debilitating illness (for example).

I'm ok with the existence of this tort.

Wrongful Birth lawsuits are brought by the parent against the Doctor, to compensate for the additional cost (emotional and/or financial) of raising a child with a debilitating illness (for example) that would otherwise not have occurred if not for the Doctor's neglignece.

Again, I'm ok with the existence of this tort.

In both cases, suffering (i.e. injury) occurred due to the doctor's negligence: if not for the doctor's negligence, no suffering would have occurred. The doctor's negligence should therefore be the only fact established by the jury in both cases, though the award should obviously depend on the costs associated with the illness. Seems pretty straightforward to me.

 

[classical_hero]

So to be clear:

Wrongful Life lawsuits are brought by the child (or on the child's behalf) against the Doctor, claiming that the Doctor's negligence lead to the child living with a debilitating illness (for example).

I'm ok with the existence of this tort.

Wrongful Birth lawsuits are brought by the parent against the Doctor, to compensate for the additional cost (emotional and/or financial) of raising a child with a debilitating illness (for example) that would otherwise not have occurred if not for the Doctor's neglignece.

Again, I'm ok with the existence of this tort.

In both cases, suffering (i.e. injury) occurred due to the doctor's negligence: if not for the doctor's negligence, no suffering would have occurred. The doctor's negligence should therefore be the only fact established by the jury in both cases, though the award should obviously depend on the costs associated with the illness. Seems pretty straightforward to me.

I don't think any of these is what Camikaze is talking about. What I think he is about is that if you say do a screening and realise the child has a disability that is 100%, then I think that is what he means by wrongful life and how it has been used. Personally I think it s a disgusting to say that a disabled life is a wrong life, since it means that they are not quite human enough. Life is a gift, even those who are disabled should have the chance to be successful people, not less successful in their life.

 

[Camikaze]

They could blame the consequences on the Quetzalcoatl if they wanted, that doesn't mean that it will actually get to a court room.

Unfortunately (IMO) these cases are making it to the courtroom, and winning.

This seems to be a misidentification of where the problem lies, though. If we assume for the sake of argument that these cases are making it to court, then the problem is that it's too easy to demonstrate breach of a duty. Given the perceived problem is that the bar is set too low for breach, shouldn't that be what you target, rather than the existence of a duty of care itself?

So to be clear:

Wrongful Life lawsuits are brought by the child (or on the child's behalf) against the Doctor, claiming that the Doctor's negligence lead to the child living with a debilitating illness (for example).

I'm ok with the existence of this tort.

Wrongful Birth lawsuits are brought by the parent against the Doctor, to compensate for the additional cost (emotional and/or financial) of raising a child with a debilitating illness (for example) that would otherwise not have occurred if not for the Doctor's neglignece.

Again, I'm ok with the existence of this tort.

In both cases, suffering (i.e. injury) occurred due to the doctor's negligence: if not for the doctor's negligence, no suffering would have occurred. The doctor's negligence should therefore be the only fact established by the jury in both cases, though the award should obviously depend on the costs associated with the illness. Seems pretty straightforward to me.

Good explanation of the difference.

Question: do you think abortion should solely be the choice of the woman who is pregnant?

Also, the underlying idea of damages in tort (or tort in general) is to put someone in the position they would've been in had the tortious act not occurred. If the contention in a case is that the plaintiff would've been better off not being born, I can only think of one way to put them back in that position. If you were to say that that should be translated to monetary damages, how exactly are you quantifying it? How do you make a comparison between the value of being alive and the value of not being born (remembering that the value of not being born is supposedly higher in this case; something that begs a moral question in itself)?

I don't think any of these is what Camikaze is talking about.

They're precisely what I'm talking about, actually. With the key word being 'living'; the contention is that the child is only alive due to the doctor's negligence, whether the illness itself was caused by the doctor's negligence or not. The child is contending they should not have been born.

Edit: so actually, perhaps those definitions aren't what I'm meaning if they were meant to be referring to any injury caused by a doctor's negligence to an unborn child. What I'm talking about is not cases where the injury itself is caused by the doctor, but where the birth only occurred because the doctor failed to inform the parents of something for which they would've opted for an abortion.

Edit: lovett outlines it well below. I assume Mise got it as well.

 

[lovett]

Wrongful birth is where the parents sue because they have to bear the costs of a child they otherwise wouldn't have had. It's less contentious, but why should the parents be able to sue for what is essentially their child's condition, if their child should not?

Both suits, in my opinion, are (legally) perfectly fine. I believe this for much the same reason that Mise does.

But there is a difference between 'wrongful birth' and 'wrongful life' suits. The damage caused by wrongful birth is, I think, fairly straightforward. If the doctor had not been negligent, the parents would not have had a child with a handicap. Quite possibly, they would have still had a child. But it would have been a different child, a non-handicapped child. They would have loved this child just as much (I assume) but have avoided the special costs one must bear when one has a handicapped child.

From the child's perspective, on the other hand, the conditions under which the doctor have harmed them are much narrower. Precisely, they are harmed if and only if their life is not worth living. That is because if an abortion had occurred the child their parents had would not be them, just born without a handicap. It would have been a different child; they would not have been born at all. The only conditions in which this is a better outcome for them is if their life is not worth living; if their life is so terrible that it would have been better (for them!) had they had never lived at all.

I am sure their are some circumstances in which one's life is not worth living, and probably some lives are not worth living from birth. But these circumstances are (thankfully) exceedingly rare. This means it is exceedingly rare that one could make the claim of wrongful life.

 

[Patroklos]

But there is a difference between 'wrongful birth' and 'wrongful life' suits. The damage caused by wrongful birth is, I think, fairly straightforward. If the doctor had not been negligent, the parents would not have had a child with a handicap. Quite possibly, they would have still had a child. But it would have been a different child, a non-handicapped child. They would have loved this child just as much (I assume) but have avoided the special costs one must bear when one has a handicapped child.

Yeah, but how can you PROVE that you would have had an abortion otherwise. Given the number of parents that wouldn't without a declared and contractually obligated agreement to abort given a certain result, there is no way you can prove abortion was the only outcome given a different test result.