Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/birth injury case and its proceedings.)
THE NATURE OF WRONGFUL LIFE/ WRONGFUL BIRTH ACTIONS
Wrongful Life And Wrongful Birth Actions Are Forms Of Professional Negligence Claims.
The courts in California recognize wrongful life and wrongful birth as a particular variety of the more common cause of action for professional or medical malpractice. (Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1004.) The plaintiff in a wrongful life or wrongful birth action, like the plaintiff in a garden-variety professional negligence claim, must prove the following elements: (1) Defendant owed plaintiff a duty to use such skill, prudence and diligence of other members of his profession; (2) Defendant breached that duty; (3) A causal connection between the breach and any injury; and (4) Actual loss or damage resulting from the professional negligence. (Ibid.)
But the gravamen of the wrongful life/ wrongful birth claim is the claim that the child is born impaired with a genetic defect or medical condition and but for the defendant’s negligence, the child would not have been born to suffer the defect. (Ibid.) Stated differently, wrongful life/ wrongful birth actions are essentially actions for malpractice based on negligent genetic counseling and testing. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 883.)
The term wrongful life generally refers to an action brought by the child to recover damages incurred as a result of being born with the medical condition. (Turpin v. Sortini (1982) 32 Cal.3d 220, 225.) The term wrongful birth generally refers to an action brought by the parents to recover damages allegedly incurred as a result of the child being born impaired. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225.) Here, this is a wrongful life action brought by the child plaintiff although the mother plaintiff also sues for negligence.
The primary difference between a wrongful life claim and the garden-variety medical malpractice claim is the type of damages recoverable by the plaintiff. The plaintiff child in a wrongful life action is prohibited from recovering general damages (pain and suffering) as a result of being born impaired. The child cannot recover for this type of damage because it is virtually impossible for a reasonable jury to rationally determine the amount of damages recoverable for a child being born impaired rather than not being born at all. Consequently, making a determination of general damages becomes speculative and is not allowed. (Id. at p. 235.) General damages in the form of loss of earnings are equally non-recoverable by the child. (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701.) Plaintiffs stipulated that no such damages are being claimed by the child plaintiff here.
Plaintiff child’s damage recovery in a wrongful life action, once liability is determined, is limited solely to the economic damages representing the extraordinary medical, educational, and training expenses that the child will incur as a result of being born impaired. (Turpin v. Sortini, supra, 32 Cal.3d at p. 237.) Extraordinary medical expenses means those additional, out-of-pocket expenses that are the proximate result of the child plaintiff’s hereditary ailment. (Id. at p. 239.) Extraordinary medical expense does not mean the type of ordinary medical expenses normally associated with a birth and normal development of a child and unrelated to the genetic defect or medical condition (i.e., office visit with pediatrician for the child’s cold or routine dental care).
In a wrongful birth action, as in the wrongful life action, the parents are equally prohibited from recovering general damages in the form of pain and suffering. Again, the parents cannot recover general damages because it is virtually impossible to rationally determine a dollar amount for the creation of an impaired parent-child relationship in place of no relationship at all. (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 7.) (See Part 5 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.