C. Elements Defined

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

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."⁸ 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."⁹ Unless the subject matter is within common knowledge and experience, the standard of care must be established by expert testimony.¹⁰

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.¹¹

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.¹² 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.¹³ 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.¹⁴

3. Damages Proximately Resulting from the Breach

The injury in a wrongful birth action is the failure of the plaintiffs to obtain an abortion.¹⁵ The 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

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