E. Damages

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

E. Damages

As previously mentioned, the issue of damages in wrongful birth actions is problematic.⁷⁹ Among the damages that have been considered by courts are mental and emotional anguish and costs of raising, educating, and supervising an ill or differently abled child.⁸⁰ In Phillips v. United States⁸¹ the court concluded the plaintiffs were entitled to damages for all the extraordinary expenses necessitated by their child's condition. The court awarded economic damages for: (1) the reasonable value of care, food, clothing, housing, and other necessary items from the child's birth until the time of trial; (2) the cost of home care for 14 years after trial (until the child reached eighteen and one half) less the cost of raising a "normal child;" (3) residential group home care from the time the child would leave home through the remainder of his prospective life expectancy (40 years).⁸² Emotional damages were also considered. While the court seemed to suggest there must be physical manifestation before such damages may be awarded, it also said:

In the present case, the economic damages suffered by plaintiff are sufficient to remove the case from the category in which the sole damages alleged are those of mental anguish. Thus, damages for emotional distress would be permissible even assuming arguendo that there was no physical manifestation of these damages.⁸³

The court awarded $500,000 in damages for emotional distress, but applied the "benefit principle"⁸⁴ and reduced those damages by fifty percent (50%).

Punitive damages are now governed by the Fairness in Civil Justice Act of 2011, effective January 1, 2012.⁸⁵ Under the Act, punitive damages may be considered if compensatory or nominal damages have been awarded, but may be awarded only if the plaintiff proves by clear and convincing evidence that his or her harm was the result of willful, wanton, or reckless conduct by the defendant.⁸⁶ Factors to be considered are set out in the Act.⁸⁷ The Act also prescribes caps on the amount that may be awarded,⁸⁸ but provides for certain instances in which no cap applies.⁸⁹ For example, there is no cap if, at the time of injury, the defendant had an intent to harm and the court determines that the defendant's conduct did in fact harm the claimant.⁹⁰

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Notes:

^[79] See 74 A.L.R. 4th 798 (1989) for an extensive discussion of the issue of damages in wrongful birth actions in state and federal decisions across the country. See also Stein, Backdoor Eugenics: The...