Abstract
My central task here is to explore the serious side of the humorous epitaph W. C. Fields is said to have chosen for his tombstone: “On the whole, I’d rather be in Philadelphia.” Of course, that is only a part of my thesis. In its broadest terms, the argument is that the term wrongful life has added needless confusion to the law—the courts are to blame for creating and employing it and the commentators are at fault for repeating it (a sin I suppose I am guilty of even now). The judiciary’s use of the terminology and the reasoning to which it gives rise in the decision of cases has taken a fairly straightforward injury and turned it into a metaphysical conundrum. This problem is going to assume increasing significance as human genetics becomes a more accepted part of medical practice, particularly as prenatal diagnosis for an ever-growing number of conditions becomes incorporated into obstetrics. With increased frequency, perhaps, will come clearer analysis, which will lead the courts to the view that recovery for malpractice leading to an affected birth should usually be possible for the parents, under standard theories of negligence and informed consent, and should also be available, upon proof of appropriate facts, for a child born with a severe anomaly that was “preventable.” It is particularly in the latter context that it may be necessary to explore Fields’s much-quoted dig at the town I call home.
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References and Notes
App.2d 240, 190 N.E.2d 849 (1963), cert, denied, 379 U.S. 945 (1964). See also Williams v. New York, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343 (1966); Slawek v. Stroh, 62 Wisc. 2d 295, 215 N.W.2d 9 (1974).
N.J. 22, 227 A.2d 689 (1967).
The phrase is from Tedeschi, G., On tort liability for “wrongful life,” Israel L. Rev. 1:513, 530 (1966), which is relied upon in Justice Proctor’s opinion, Gleitmati v. Cosgrove, 49 N.J. 22, 29, 227 A.2d 689, 692 (1967), and quoted as a “logico-legal difficulty,” by Judge Keating in his concurring opinion in Williams v. New York, 18 N.Y.2d 481, 484, 276 N.Y.S.2d 885, 888, 223 N.E. 2d 343, 345 (1966).
Reilly, P., Genetics, Law and Social Policy, Harvard University Press, Cambridge (1977); Capron, A. M., Autonomy, confidentiality, and quality care in genetic counseling, in: Genetic Counseling: Facts, Values and Norms (A. M. Capron), Birth Defects: Orig. Artie. Ser. 15 (No. 2) (1979), Alan R. Liss, New York; Note, Father and mother know best: Defining the liability of physicians for inadequate genetic counseling, Yale L. J. 87:1488 (1978).
Not treated here is harm of the opposite sort that could occur if inaccurate advice is given leading to unnecessary protective steps, such as abortion or sterilization; liability may also be imposed if the couple is counseled into unnecessary contraception, artificial insemination, or adoption, although these steps would be less likely to give rise to substantial irreversible harm.
Coleman v. Garrison, 327 A.2d 757 (Del. Super. 1974); Clegg v. Chase, 89 Misc.2d 510, 391 N.Y.S.2d 966 (Sup. Ct. 1977); contra, Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934).
recovery permitted: Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Troppi v. Scarf, 31 Mich. App. 240, 197 N. W. 2d 511 (1971); Betancourt v. Gaylor, 136 N. J. Super. 69, 344 A. 2d 336 (1975); Ziemba v. Sternberg, 45 App. Div. 2d 230, 357 N. Y.S.2d 265 (1974); recovery denied: Shaheen v. Knight, 11 Pa. D. _ampz_ C.2d 41 (Common Pleas 1957); Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).
Rivera v. State, 404 N.Y.S.2d 950 (Ct. Cl. 1978 ).
S. W. 2d 846 (Tex. 1975 ).
Rieck v. Medical Protective Soc., 64 Wisc. 2d 514, 219 N.W.2d 242 (1974).
Dumer v. St. Michael’s Hosp., 69 Wisc. 2d 766, 233 N.W.2d 372 (1975).
N. Y. 2d 401, 413 N. Y. S. 2d 895 (1978).
N. Y. 2d 109, 397 N. Y. S. 2d 363; 366 N. E. 2d 64 (1977).
Doctor held liable in abnormal births, New York Times, Dec. 28 (1978); Doctors take care, Newsweek, Jan. 8 (1979); Lavine, Wrongful birth decision termed victory for patients, Nat. L. J. Jan. 8: 3, cod. 1 (1979). “New York doctors see twin impacts of the decision. The ruling, say these observers, may boost malpractice insurance premiums and could also figure in driving more physicians from their obstetric practices.” Chapman, S., What are your odds in the prenatal gamble? Legal Aspects of Medical Practice March: 30 (1979).
Jury clears two doctors of birth-defect liability, New York Times, April 9 (1979).
N. J. at 29, 227 A. 2d at 692.
Clearly, the case would be still easier were the options available upon diagnosis of a fetus being at “genetic risk” to include some form of corrective medical or surgical intervention in utero.
N. Y. 2d 109, 397 N. Y. S. 2d 363, 366 N. E. 2d 64 (1977).
Tobin v. Grossman, 24 N. Y. 2d 609, 301 N. Y. S. 2d 554 (1969).
Dillon v. Legg, 68 Cal. 2d 728, 740, 69 Cal. Rptr. 72, 80, 44 P. 2d 912, 920 (1968).
Hair v. County of Monterey, 45 Ca1.App.3d 538, 119 Cal. Rptr. 640 (1975); Jansen v. Children’s Hosp. Medical Center, 31 Ca1.App. 3d 23, 106 Cal. Rptr. 884 (1973).
Huber v. Aengst, 28 Citation 88 (1974) (Cal. Super. Ct., Los Angeles Co., Docket No. NEC 12214, May 17, 1973 ).
Justus v. Atchinson, 139 Cal. Rptr. 97 (1977).
App. Div. 2d 73, 394 N.Y.S.2d 933 (1977).
App. Div. 2d 420, 386 N. Y. S. 2d 460 (1976).
App. Div.2d at 78, 394 N.Y. S. 2d at 936 (failure to perform amniocentesis on 37-year-old; Down syndrome child born).
Vaccaro v. Squibb Corp., 412 N. Y. S. 2d 722 (Sup. Ct. 1978 ).
Palsgra f v. Long Island R. Co., 248 N.Y. 339, 344, 162 N. E. 99, 100 (1928).
The customary tort standard of “reasonableness” should apply to the professional’s conduct but not to the highly personal and subjective decision making of the clients. Causation is made out if it is established that the clients (again, not the “reasonable person” but the actual individuals, with personal values on which the finder of fact determines they would have acted) would by contraception, abortion, artificial insemination, or other means have avoided the injury (manifested in the birth of the affected child) had the counselor or physician not breached his or her duty.
This bland assumption about what would have happened if the defendant had not been negligent is probably seldom justified. “Normal” children bring their parents untold trials and sorrows, and there is no assurance that another child of the same parents, though not affected by the particular problems manifested by the child then before the court, would even be “normal.” Vaccaro itself illustrates that problem, as the drug in question, a progestational hormone, had been administered to Mrs. Vaccaro to prevent miscarriage because she had not had live issue from two previous pregnancies. Vaccaro v. Squibb Corp., 412 N.Y. S. 2d 722, 723 (Sup. Ct. 1978). The infant Vaccaro’s cause of action against the same defendants for having caused her deformities were not treated in justice Ascione’s ruling on the defendant’s motions, which were addressed rather to 9 of the 10 causes brought by the child’s parents. But it is possibly significant that neither in ruling on the parents’ actions nor in briefly considering the child’s does the Supreme Court opinion suggest that all damages are moot because without the defendant’s acts the infant plantiff would not have been born, that there is some logical barrier to her collecting for the injuries that did accompany the birth that the defendants facilitated for her.
N. Y. 2d 378, 372 N. Y. S. 2d 638, 334 N. E. 2d 590 (1975).
Ibid. at 383, 372 N. Y. S.2d at 643, 334 N. E. 2d at 593.
N.Y.2d at 409, 413 N.Y.S.2d at 902.
Ibid.
One way to educate the jury about the unusual task it has before it would be by use of instructions along the following lines: In calculating the damages of the child, consider first whether the defendant has through negligence failed to do anything that would have cured or alleviated the child’s condition. If you find such a failure, the defendant is responsible for the measurable difference between the child’s present condition and the condition he would have been in had the defendant not been negligent. If, on the other hand, you find that no treatment was available to cure or alleviate the condition of the child during the pregnancy, then you must decide whether the defendant negligently or willfully failed to inform the child’s parents of the risks and alternatives, and whether if the parents had been so informed they would have terminated the pregnancy. If you find affirmatively on both these questions, you may find the following steps helpful in calculating the damages the child is entitled to collect: First, determine a dollar amount for the harm that a person would experience if, at birth, he or she were to experience injuries that left him or her in the condition you now find the child to be in. Second, determine a dollar amount for the harm that a person would experience if he or she were to die prior to birth; in this figure you may include compensation for the loss of life’s pleasures and for the loss of life itself. Third, deduct the second figure from the first. If the result is positive, this suggests the amount by which the child’s present condition is worse than the nonexistence into which the child would have been placed had his [or her] parents known of the risk or fact of the child’s uncorrectable condition and chosen to terminate the pregnancy.
Stewart v. Long Is. Coll. Hospital, 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (1972); Dumer v. St Michaels Hosp., 69 Wise. 766, 233 N.W. 2d 372 (1975).
Lord Kilbrandon, The comparative law of genetic counseling, in: Ethical Issues in Human Genetics (B. Hilton et al., eds.), p. 245, Plenum Press, New York (1973); Note, Father and mother know best: Defining the liability of physicians for inadequate genetic counseling, Yale L. J. 87:1488, 1500 (1978).
Capron, A., Informed decisionmaking in genetic counseling, Indiana L. J. 48: 581, 603 (1973).
Park v. Chessin, 60 App. Div. 80, 94, 400 N.Y.S.2d 110, 118 (1977) ( Titone, J., dissenting).
Park v. Chessin, 60 App. Div. 80, 88, 400 N.Y.S. 2d 110, 114 (1977).
Becker v. Schwartz, 46 N.Y. 401, 406, 413 N.Y.S. 2d 895, 900 (1978).
Gleitman v. Cosgrove, 49 N.J. 22, 28, 227 A.2d 689, 692 (1967), quoting Smith v. Brennan, 31 N.J. 353, 364, 157 A. 2d 497, 503 (1960).
Judge Cooke, dissenting in Howard v. Lecher, 42 N.Y.2d 109, 116, 397 N.Y.S.2d 363, 368, 366 N.E.2d 64, 68 (1977) from the allowance of any recovery for emotional harm, would have limited the cause of action to the prospective mother since he concluded that a physician caring for a woman owes no direct duty of care to her mate. This conclusion, although perhaps constitutionally mandated if the woman forbade the physician to take the man’s interests into account, is not justified in the usual case. A couple is planning to have a child; as both are undertaking certain obligations thereby and both have certain expectations, the physician or other genetic counselor owes a duty to both since they are both exposed to risks by nondisclosure of information material to the decision whether to continue or terminate the pregnancy.
Since this chapter was sent to the printer, a number of important legal developments have occurred, most notably the partial overruling of the Gleitman decision by the New Jersey Supreme Court in Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). See Capron, A., Tort liability in genetic counseling, Columbia L. Rev. 79: 618 (1979).
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Capron, A.M. (1980). The Continuing Wrong of “Wrongful Life”. In: Milunsky, A., Annas, G.J. (eds) Genetics and the Law II. Springer, Boston, MA. https://doi.org/10.1007/978-1-4613-3078-3_9
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