48 Wrongful Birth

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

48 Wrongful Birth

A. Definition¹

Wrongful birth is an action by a parent brought against a physician for failure to inform the parents of the increased possibility of birth defects in the child.² A related action is wrongful life, an action brought by the child for the same failure. The South Carolina Supreme Court has specifically declined to recognize a common law cause of action for wrongful life brought by or on behalf of a child with a congenital defect.³

B. Elements

A claim for wrongful birth is not a new and distinct cause of action, but falls within the traditional boundaries of negligence.⁴ In order to recover in any negligence action, the plaintiff must show:

(1) a duty of care owed by the defendant to the plaintiff
(2) a breach of that duty by a negligent act or omission
(3) damages proximately resulting from the breach.⁵

Sometimes the damages element is separated from proximate causation to create four elements.⁶

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Plaintiff

Duty of care is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."⁷ The duty of care in a wrongful birth action is the same as in any medical malpractice action. The physician must use "that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions and in like surrounding circumstances."⁸ Unless the subject matter is within common knowledge and experience, the standard of care must be established by expert testimony.⁹

A wrongful birth action is based on having missed the opportunity to terminate the pregnancy. If that right resides solely in the pregnant woman, is any duty owed to her husband? One court decided that while the ultimate decision to terminate would ordinarily rest with the pregnant woman, when she is married the decision will often be arrived at jointly by the woman and her husband. Even though the wife could have made the decision by herself that is not a basis, concluded the court for holding, as a matter of law, that no duty of care extended to the husband.¹⁰

2. A Breach of That Duty by a Negligent Act or Omission

The plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.¹¹ The defendant's failure to conform to the standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.¹² An allegation in a wrongful birth suit that the defendant failed to advise, counsel and test the plaintiff is sufficient to withstand a motion for summary judgment.¹³

3. Damages Proximately Resulting from the Breach

The injury in a wrongful birth action is the failure of the plaintiffs to obtain an abortion.¹⁴The plaintiffs must show a causal relationship between that failure and the defendant's alleged negligence. Regarding proximate cause in general, the South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff, therefore, proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.¹⁵

Damages present a "difficult and troubling" problem for courts in wrongful birth actions.¹⁶ Courts have considered that the birth of a child, regardless of any maladies, is in and of itself a benefit. But the Federal District Court for South Carolina said "... mere difficulty in the ascertainment of damages would be insufficient to preclude the action. In calculating plaintiff's damages, any benefits they derive from defendant's negligence may properly be offset against the detriments which flow from that conduct, in accordance with traditional tort principles."¹⁷

D. Defenses¹⁸

The statute of limitations for medical malpractice actions provides that "[i]n any action ... to recover damages for injury to the person arising out of any medical, surgical, or dental treatment or omission, or operation by any licensed health care provider ... acting within the scope of his profession must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from the date of discovery or when it reasonably should have been discovered, not to exceed six years from the date of occurrence, or as tolled by this section."¹⁹ The six-year period is the outer limit beyond which an action is barred, regardless of when discovered.²⁰The statute applies to causes of action arising under the Tort Claims Act.²¹ Based on the "clear language of the statute," both contract and negligence actions are controlled by the statute where damages are sought for injury arising out of medical treatment.²² The South Carolina Supreme Court has declined to adopt either the continuous treatment rule or the doctrine of continuing tort;²³ however, some latitude for discovery of an injury in the medical malpractice context is permitted, given the expert knowledge that may be required to determine there is an injury.²⁴ No South Carolina case has addressed whether the statute is applicable to wrongful birth actions. Query whether a wrongful birth action is an "action to recover damages for injury to the person."

The South Carolina Tort Claims Act would be applicable where a government hospital is involved.²⁵ The Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity. ²⁶ It contains, however, many limitations on liability and damages²⁷which may preclude or restrict a plaintiff's cause of action.²⁸ One is the statute of limitations which is two years, one year less than the usual limitation for malpractice actions.²⁹ It has been held that the difference in limitations between governmental and private hospitals is not a denial of equal protection.³⁰ Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude.³¹ If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.³² These provisions:

... in no way shall limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer ...³³

In a case involving a federal facility it was held that the misrepresentation exclusion of the Federal Tort Claims Act³⁴ does not bar a claim for wrongful birth.³⁵

Contributory negligence is a defense in a negligence action and may be applicable to medical malpractice actions where the plaintiff fails to inform the physician of health conditions or to follow the physician's advice.³⁶ Contributory negligence requires the defendant show the plaintiff was negligent³⁷ and that the negligence was the proximate cause of the injuries.³⁸ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.³⁹ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.⁴⁰

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption.⁴¹ Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.⁴² The doctrine has application to medical malpractice actions.⁴³ A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.⁴⁴

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,⁴⁵ the decision does not have retroactive application.⁴⁶ There is a statutory limitation on liability for charitable organizations.⁴⁷ A "charitable organization'' is any organization, institution, association, society, or corporation which is exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) or (d).⁴⁸ A person...