Wrongful Life

[Samson]

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?

The main problem I have is mostly about what such a case says about the value of someones life. It seems to me that these cases are putting the value of that disabled life at significantly below 0. That I do not agree with.

It is particularly stark in the case of wrongful life (ie. why not just kill / allow suicide), but it is the same issue with wrongful birth.

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)?

This difficulty is also a problem for me, or perhaps it is another facet of the problem I describe above.

 

[ELITEOFWARMAN8]

I think yes. Besides, if they have a handicap like mental retardation (and please don't use the PC term of challenged.....), then someone going to have to pay for the medical bills. Tell the doctor to do his/her job next time.

 

[Mise]

@Camikaze/Classical Hero: Yeah, for some reason I forgot to mention the fact that the chain goes "negligent doctor -> no abortion -> child with disability", rather than just "negligent doctor -> child with disability". Personally I don't see the "no abortion" part as lengthening the chain of causation enough to absolve the doctor of liability here, which is why I think that the only thing asked of the jury should be "was the doctor negligent", rather than "was the doctor the cause of the disability".

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.

Well I'm not sure it would be as hard as that to prove: civil suits only require "balance of probabilities", so if the doctor was negligent and the case rests on whether the parents would have had an abortion, it might just be necessary for the parents to, like, NOT be donors to planned parenthood or something. IANAL so I don't know how this works either. If I was on the jury, I'd say that if the parents were anti-abortion, they wouldn't have brought the suit in the first place, as it wouldn't have occurred to them that the doctor's negligence was actually a problem at all. In any case, I would accept that the parents are telling the truth unless I had a reason to not believe them. Again, the requirement is just "more likely than not", which is not hard to achieve when it's the parent's word against, well, nobody else!

 

[GhostWriter16]

I'm pro-life anyway, which makes this hard to really address, but even if I were pro-choice, lettiing the parent sue at this point is basically like telling the child (Who would be a child at this point) that his existance is a mistake. That's awful, and it logically leads to eugenics.

So no. No matter what qualifiers you put on it, no.

 

[SS-18 ICBM]

The concept is good but I think the term used to describe it is misleading and terrible.

 

[Traitorfish]

I'm pro-life anyway, which makes this hard to really address, but even if I were pro-choice, lettiing the parent sue at this point is basically like telling the child (Who would be a child at this point) that his existance is a mistake. That's awful, and it logically leads to eugenics.

I don't think you know what "eugenics" means. It describes a systematic attempt to improve the health of an entire population, it doesn't simply describe any attempt to avoid the burdens of disability or malformation.

 

[JollyRoger]

Medical malpractice suits are in need of reform, and this would fall into that category. In the present environment I'd make it easier to file such lawsuits.

 

[CELTICEMPIRE]

I don't think you know what "eugenics" means. It describes a systematic attempt to improve the health of an entire population, it doesn't simply describe any attempt to avoid the burdens of disability or malformation.

True, it usually involves racist BS theories.

 

[Traitorfish]

True, it usually involves racist BS theories.

Not as such. Eugenics and race science are in themselves distinct theories, they just found a lot of common ground in the interwar period. Some people who supported eugenics were sceptical of race science, such as the Italian Fascists, while some people who supported race science were sceptical of eugenics, such as reactionary Christians. Some people rejected both, like the Communists, and some people embraced both, like the Nazis. The relationship between them is more complex than just saying that they "usually involve" one another.

 

[Souron]

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?

Yes, but given an individual's inability to fix the problems, not contributing to the problem is the next best thing.

 

[Save_Ferris]

Wouldn't disability aid be there to help them? Either way, I think you'd have to be a complete jerk to sue someone who was trying to help you, even if your life did suck.

 

[Camikaze]

@Camikaze/Classical Hero: Yeah, for some reason I forgot to mention the fact that the chain goes "negligent doctor -> no abortion -> child with disability", rather than just "negligent doctor -> child with disability". Personally I don't see the "no abortion" part as lengthening the chain of causation enough to absolve the doctor of liability here, which is why I think that the only thing asked of the jury should be "was the doctor negligent", rather than "was the doctor the cause of the disability".

The chain of causation isn't all that is relevant, though, as is the case with any tort. A business might undercut their competition (i.e. engage in an act that damages another party), but they're not bound to pay damages unless they owe some sort of duty which they have breached. The point being that even if the doctor can be identified as the cause of the cost, the existence of a duty of care, and a breach of that duty, is necessary. Remember that here the duty is not owed to the parents, but to the unborn child. What is this duty? It isn't to prevent the injury, because in these situations the doctor can do nothing to actually prevent the injury. The disability is not due to the doctor's negligence (if it is, that's a different type of case). Rather, the duty presupposes a right of the unborn child to be aborted. Again, we're talking about the duty to the unborn child here, not to the parents, so it's not a right to abort, but a right to be aborted.

So say the doctor did warn of the disability. That would not change the predicament of the unborn child; they would still have the exact same right to be aborted. Such a right was not attracted by anything the doctor did, after all, but by the disability itself, which is entirely beyond the doctor's control. So if a child in such a position has a right to be aborted, presumably they'd be able to sue their mother if they weren't. The fault would have shifted entirely from the doctor (whose negligence is said to come from failing to inform the mother) to the mother (who, having been informed, would have sole responsibility over any decision to abort). The decision to not abort the pregnancy would be the immediate cause of the damage claimed (i.e. the life, not the disability).

I guess mothers could cover themselves with insurance, and it wouldn't be so bad if their disabled child sued 'them', but then the insurer would also have an interest in the decision to abort.

And perhaps this is what is most interesting about the issue. 'Pro-choice' usually involves a focus on women's rights rather than the unborn child's rights. But here that focus is shifted, with the unborn child's rights taking precedence over the woman's choice, which is the usual anti-abortion position. Recognising an unborn child's right to be aborted would seem to be inconsistent with the paramountcy of the woman's choice. How can those two be reconciled? This may be hysterically called the "why do you hate women?!?!?!?" argument.

The injury itself is not what the damages are for, either, remembering that the doctor could have done absolutely nothing to prevent the injury. Giving damages for the injury is giving damages for something separate/distinct. Damages are to put the plaintiff in the position they would've been had the negligence not occurred, which is here supposed to be an amount equal to the value between a life of disability and no life at all. How is the value of life itself quantified? Or how do the courts assign damages on the basis that no life is more valuable than the life of a disabled person?

And to be clear, I actually don't know where I stand on this issue, because it's not exactly an easy one. My natural instinct is to let the vulnerable party claim, but I just can't see at the moment how that would actually make sense beyond satisfying a desire to compensate, even if that compensation comes from an entirely wrong direction. The question here isn't whether the child should be compensated in some way so that they should get treatment, but whether that compensation should come from the doctor.

lettiing the parent sue at this point is basically like telling the child (Who would be a child at this point) that his existance is a mistake.

That's wrongful birth, not wrongful life. Though yeah, if you oppose abortion, opposing both torts is consistent (despite the fact that wrongful life is about the rights of an unborn child).

Yes, but given an individual's inability to fix the problems, not contributing to the problem is the next best thing.

Robbing a bank could be considered the next best thing in the same way. i.e. just because there's an identifiable problem that requires funding doesn't mean every method of getting the money makes sense. It's not the doctor's fault that the child has a disability (it's contentious even to say that it's the doctor's fault that the child is alive, given there's nothing they could've done to ensure such an eventuality was prevented). The doctor could not have done anything to prevent the injury. The doctor could have supposedly done something to stop the cost, but not the injury. And saying that the doctor could've mitigated the cost is like saying the parents could've mitigated their own cost by giving the baby up for adoption. If the problem is that 'someone has to pay for it' (which I totally agree with), isn't that more up to society (i.e. a government scheme of some sort) than a doctor who couldn't have done anything to prevent the injury?

 

[Arwon]

It occurs to me that the practical argument for wrongful birth and wrongful life torts (obtaining compensation for the increased costs of raising a child/living disabled) would be almost entirely removed if there was adequate disability insurance.

 

[Samson]

The chain of causation isn't all that is relevant, though, as is the case with any tort. A business might undercut their competition (i.e. engage in an act that damages another party), but they're not bound to pay damages unless they owe some sort of duty which they have breached. The point being that even if the doctor can be identified as the cause of the cost, the existence of a duty of care, and a breach of that duty, is necessary. Remember that here the duty is not owed to the parents, but to the unborn child. What is this duty? It isn't to prevent the injury, because in these situations the doctor can do nothing to actually prevent the injury. The disability is not due to the doctor's negligence (if it is, that's a different type of case). Rather, the duty presupposes a right of the unborn child to be aborted. Again, we're talking about the duty to the unborn child here, not to the parents, so it's not a right to abort, but a right to be aborted.

So say the doctor did warn of the disability. That would not change the predicament of the unborn child; they would still have the exact same right to be aborted. Such a right was not attracted by anything the doctor did, after all, but by the disability itself, which is entirely beyond the doctor's control. So if a child in such a position has a right to be aborted, presumably they'd be able to sue their mother if they weren't. The fault would have shifted entirely from the doctor (whose negligence is said to come from failing to inform the mother) to the mother (who, having been informed, would have sole responsibility over any decision to abort). The decision to not abort the pregnancy would be the immediate cause of the damage claimed (i.e. the life, not the disability).

I guess mothers could cover themselves with insurance, and it wouldn't be so bad if their disabled child sued 'them', but then the insurer would also have an interest in the decision to abort.

And perhaps this is what is most interesting about the issue. 'Pro-choice' usually involves a focus on women's rights rather than the unborn child's rights. But here that focus is shifted, with the unborn child's rights taking precedence over the woman's choice, which is the usual anti-abortion position. Recognising an unborn child's right to be aborted would seem to be inconsistent with the paramountcy of the woman's choice. How can those two be reconciled? This may be hysterically called the "why do you hate women?!?!?!?" argument.

The injury itself is not what the damages are for, either, remembering that the doctor could have done absolutely nothing to prevent the injury. Giving damages for the injury is giving damages for something separate/distinct. Damages are to put the plaintiff in the position they would've been had the negligence not occurred, which is here supposed to be an amount equal to the value between a life of disability and no life at all. How is the value of life itself quantified? Or how do the courts assign damages on the basis that no life is more valuable than the life of a disabled person?

And to be clear, I actually don't know where I stand on this issue, because it's not exactly an easy one. My natural instinct is to let the vulnerable party claim, but I just can't see at the moment how that would actually make sense beyond satisfying a desire to compensate, even if that compensation comes from an entirely wrong direction. The question here isn't whether the child should be compensated in some way so that they should get treatment, but whether that compensation should come from the doctor.

I suppose this brings up the question, when the examples given by new scientist are Isrealis that marry within their family, would this act in its self be enough for the child to sue?

 

[Mise]

The chain of causation isn't all that is relevant, though, as is the case with any tort. A business might undercut their competition (i.e. engage in an act that damages another party), but they're not bound to pay damages unless they owe some sort of duty which they have breached.

It's necessary but not sufficient. There's a concept called "remoteness" in establishing causation in English law, I assume it's the same in the rest of the Common Law world. This doesn't make any difference to the rest of what you're saying though, which is rather interesting...

The point being that even if the doctor can be identified as the cause of the cost, the existence of a duty of care, and a breach of that duty, is necessary. Remember that here the duty is not owed to the parents, but to the unborn child. What is this duty? It isn't to prevent the injury, because in these situations the doctor can do nothing to actually prevent the injury. The disability is not due to the doctor's negligence (if it is, that's a different type of case). Rather, the duty presupposes a right of the unborn child to be aborted. Again, we're talking about the duty to the unborn child here, not to the parents, so it's not a right to abort, but a right to be aborted.

So say the doctor did warn of the disability. That would not change the predicament of the unborn child; they would still have the exact same right to be aborted. Such a right was not attracted by anything the doctor did, after all, but by the disability itself, which is entirely beyond the doctor's control. So if a child in such a position has a right to be aborted, presumably they'd be able to sue their mother if they weren't. The fault would have shifted entirely from the doctor (whose negligence is said to come from failing to inform the mother) to the mother (who, having been informed, would have sole responsibility over any decision to abort). The decision to not abort the pregnancy would be the immediate cause of the damage claimed (i.e. the life, not the disability).

I guess mothers could cover themselves with insurance, and it wouldn't be so bad if their disabled child sued 'them', but then the insurer would also have an interest in the decision to abort.

And perhaps this is what is most interesting about the issue. 'Pro-choice' usually involves a focus on women's rights rather than the unborn child's rights. But here that focus is shifted, with the unborn child's rights taking precedence over the woman's choice, which is the usual anti-abortion position. Recognising an unborn child's right to be aborted would seem to be inconsistent with the paramountcy of the woman's choice. How can those two be reconciled? This may be hysterically called the "why do you hate women?!?!?!?" argument.

The injury itself is not what the damages are for, either, remembering that the doctor could have done absolutely nothing to prevent the injury. Giving damages for the injury is giving damages for something separate/distinct. Damages are to put the plaintiff in the position they would've been had the negligence not occurred, which is here supposed to be an amount equal to the value between a life of disability and no life at all. How is the value of life itself quantified? Or how do the courts assign damages on the basis that no life is more valuable than the life of a disabled person?

And to be clear, I actually don't know where I stand on this issue, because it's not exactly an easy one. My natural instinct is to let the vulnerable party claim, but I just can't see at the moment how that would actually make sense beyond satisfying a desire to compensate, even if that compensation comes from an entirely wrong direction. The question here isn't whether the child should be compensated in some way so that they should get treatment, but whether that compensation should come from the doctor.

I suppose a more consistent solution is to say that the parents reasonably believed that a disabled life is more valuable than no life at all. That is, while they could have forseen the disability, they could not have forseen that "life with disability" was less valuable than "no life" -- which is the injury in a Wrongful Life case. Since the parents could not have forseen the injury, the parents can't have be held to have caused the injury. That way, doctors can still be held negligent if they fail to communicate all the information, but parents can't be held negligent if they decide not to abort on the basis of this information (because they could not forsee that not aborting their child would cause injury to the same child).


EDIT: Wait, no, this doesn't work... Doctor can't forsee this injury either!

 

[Formaldehyde]

There must be something to it. Otherwise, the Republicans wouldn't be trying so hard to ban the lawsuits.

The Arizona Senate passed a bill Tuesday that will prohibit medical malpractice lawsuits against doctors who withhold information from a woman that could cause her to have an abortion.

The "wrongful birth, wrongful life" lawsuit legislation passed the Republican-controlled Senate 20-9 Tuesday, setting up a coming battle in the GOP-dominated state House of Representatives. The legislation -- which is currently law in nine states -- is sponsored by a Republican senator with close ties to the conservative American Legislative Exchange Council. The approval comes as Kansas lawmakers consider similar legislation.

Sen. Nancy Barto (R-Phoenix) told the Claims Journal that she sponsored the law because she did not want claimants to blame a doctor for a baby born with disabilities. Under the provisions of her bill, a doctor could not be sued for medical malpractice if the doctor withholds information from a mother about a child's potential health issues that could influence her decision to have an abortion. In addition, a lawsuit could not be filed on the child's behalf regarding a disability.

The suits and laws have been deemed "wrongful birth" and "wrongful life."

Barto's legislation will allow for medical malpractice suits in the event for "intentional or grossly negligent" acts and for any acts that violate criminal law. Barto proposed the legislation after it was proposed by the conservative Center for Arizona Policy.

Barto did not return a message left at her Phoenix office for comment.

In 2011, Barto was named legislator of the year by ALEC. A press release she issued on the award noted she was on the executive committee of the group's Health and Human Services Task Force and touted her opposition to the federal health care reform law.

Barto's legislation is quickly drawing opposition from House Democrats, including Rep. Matt Heinz (D-Tucson). Heinz, a physician, said that he does not believe the proposal fits with the role of a doctor and noted that in many cases a woman needs to know of the potential disabilities to prevent health problems that could potentially kill her during child birth.

"I cannot think of a time that it is right to withhold information from a patient that would cause them pain or death," Heinz told HuffPost. "That is not consistent with the Hippocratic Oath."

This has already been discussed quite a bit in this forum:

Arizona law seeks to allow Doctors to lie to patients about birth defects.

 

[capslock]

What if the child wants to sue for wrongful life, but the parents say they would have had the child anyway, even knowing it would be disabled? Can mothers/parents be liable as well?

And what would they be suing for? The damages are life, so presumably the only possible compensation would be death? Wouldn't continuing to live and enjoying anypart of life at all after winning be evidence that they would rather not be dead?

I say no to the whole idea. It just seems ridiculous.

 

[MobBoss]

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.

As a doctors oath is to preserve life, I dont see how they can be sued for something like 'wrongful life'.

 

[Camikaze]

There must be something to it. Otherwise, the Republicans wouldn't be trying so hard to ban the lawsuits.

Just because someone has the wrong reasons for opposing something doesn't mean it can't be legitimately opposed. As said, it makes sense from an anti-abortion perspective to oppose wrongful life cases. But it makes just as much sense to oppose them from a pro-choice perspective, as I explained. I would hope you're not just reflexively indicating approval of them solely on the basis of your opponents' disapproval.

As a doctors oath is to preserve life

That's an interesting claim. Turning life support off isn't exactly 'preserving life', as an example.

 

[Mise]

I think I'm coming to the conclusion that the disability has to be particularly tortuous for a successful Wrongful Life claim. I think the difference btwn W. Life and W. Birth claims comes from the fact that in the W. Birth claim, the child is just a generic child, whereas the W. Life claim deals with this, specific child, who otherwise would not have been born.