Wrongful birth and wrongful conception: a parent's need for a cause of action.

• Author: Sullivan, Mary B.

1. INTRODUCTION

   Thomasine McAllister and her husband Edward had their first child in May of 1991. (1) A month later, the McAllisters received a letter from the State Health Department advising them that they may be carriers of genetic traits that may cause sickle cell disease in their children. (2) The McAllisters decided to get tested to prevent having another child that may be inflicted with sickle cell disease. (3) Dr. Khie Sem Ha drew blood from the McAllisters and told them that if there was anything to be concerned about, he would contact them. (4) Even though Mrs. McAllister visited Dr. Ha for other reasons after the testing, she was never informed of the test results. (5) As it turned out, there was a one-in-four chance that the McAllisters could have a child afflicted with sickle cell disease. (6) This became evident to the McAllisters in June of 1994, when their second child was diagnosed with the disease. (7)

   Although this situation may seem rare, it has become a recurring problem throughout the country. Numerous couples have had to deal with the sadness and resulting implications of this situation. Many innocent children have been born with diseases that parents tried to prevent. As a result, an increase in medical malpractice suits and the expanding field of genetic testing have given rise to a few different causes of action. Claims for wrongful birth, wrongful conception or wrongful pregnancy, and wrongful life have become popular as a way of dealing with these tragic situations.

   The purpose of this note is to demonstrate the need for wrongful birth and wrongful conception claims. Arguments have been made that these claims should be combined into one cause of action. The rationale for this argument is that by combining the two claims, chaos in the courts will be reduced. This note will show the need to maintain these claims as separate from one another. This note also demonstrates the proper stance of the courts in rejecting the wrongful life cause of action.

   Part II of this note gives an overview of medical malpractice and the claims of wrongful birth and wrongful conception or wrongful pregnancy. Part III gives an overview of the claim of wrongful life and argues for its abandonment. This section also discusses the reaction of the courts to this claim. Part IV deals with the differences between wrongful conception and wrongful birth and the need to maintain these causes of action as separate and distinct to ensure proper medical care and the right to choose. Part V of this note deals with the issue of damages and the debates between different jurisdictions regarding the damages that should be awarded to successful plaintiffs.

2. CAUSES OF ACTION

   The legal system has developed many medical malpractice causes of action to protect innocent people from harm. Claims for wrongful birth and wrongful conception or wrongful pregnancy now exist in most jurisdictions. However, plaintiffs who have attempted wrongful life claims have had little success.

   1. Medical Malpractice and Genetic Testing.

   The law has recognized medical malpractice as a legitimate cause of action for many years. A physician owes a duty of care to a patient under his or her supervision. A physician or surgeon who renders professional services must meet certain requirements. (8) First, the physician must possess the degree of professional learning, skill and ability that others similarly situated ordinarily possess. (9) Second, the physician must exercise reasonable care and diligence in the application of his or her knowledge and skill to the patient's case. (10) Finally, the physician must use his or her best judgment in the treatment and care of his or her patients. (11) This standard of care has since been updated to now hold a physician responsible for providing care in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. (12) The burden is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff. (13) If all the factors are not met, the physician is not considered to have acted negligently. A bad result for a patient does not automatically mean that a physician has acted negligently.

   Medical malpractice can be the result of a failure to provide informed consent to a patient, failure to properly perform a surgery, or a physician's negligent handling of a patient's problems. With advances in technology, the physician's duty to his or her patients has increased. As a result, a medical malpractice suit can now be brought for such acts as negligently performing sterilization procedures, (14) a failure to maintain or insert intrauterine devices, (15) incorrect interpretation of ultrasounds, (16) and the negligent failure of a physician to inform parents of possible genetic diseases. (17) In many of these claims, a child is born as a result of a doctor's action (e.g., negligent sterilization), or a doctor's inaction (e.g., failure to reinsert intrauterine devices). The child may have been unplanned as a result of a negligent sterilization procedure, or the child may have been born with serious genetic defects if the physician failed to inform the parents of the possibilities of such defects. Many questions are left to be decided as to what will happen to the child and how the child will be cared for. Another question that arises with these types of claims is who will pay for the child's expenses? Should the parents be held responsible for the expenses of a child that they tried to prevent? If the parents are not held responsible, is the court justified in awarding damages for the expense of raising a child? These are just some of the concerns the court must consider when deciding wrongful birth and wrongful conception or wrongful pregnancy cases.

   One newly developing area receiving a lot of attention is the field of genetic testing. (18) The area of genetics no longer deals only with rare disorders; genetic tests are also being developed for more common diseases such as heart disease, diabetes, and various cancers. (19) Genetic testing can also be used to alert couples of possible genetic problems that can result if the couple were to conceive a child. Since mistakes can be made in the genetic testing process, tort causes of action are available as a remedy. Also, to uphold public policy, courts hold physicians liable if they fail to inform patients of the availability of genetic testing for serious disorders. (20)

   Many medical malpractice claims have been brought against doctors by parents of children born with genetic diseases. (21) In most of these cases, the parents allege either that the physicians failed to inform the parents of the availability of genetic testing for the unborn child or that the physician negligently performed the genetic testing. (22) These claims automatically make physicians, genetic counselors, and genetic testing laboratories possible defendants in civil law suits. (23)

   1. Wrongful Birth

      "Wrongful birth" is a relatively new, court-made cause of action. Potential defendants to this claim include physicians, genetic counselors, and genetic testing laboratories. A wrongful birth action is brought by the parents of a child, on the parent's behalf, to recover damages for the birth of an impaired or disabled child. (24) The basic theory of a wrongful birth claim is that the physician failed to discover a birth defect and failed to advise the parents of the defect so that they could intelligently decide whether to have the child or to terminate the pregnancy. (25)

      The impairments in the child usually result from an act or an omission of the defendant physician, or because the defendant physician failed to diagnose or discover a genetic defect in the previously tested parents or the infant in time for the parents to make an informed decision as to whether to continue the pregnancy. (26) Wrongful birth claims only apply when a child is born with a defect. (27) Actions of this type are brought by parents who claim that they would have avoided conception or terminated the pregnancy had they been properly informed. (28)

      The first wrongful birth claims were brought in the late 1960s and caused some disturbances in the courts because defendants were being sued for the genetic defects in the child, even though they could not have done anything to prevent or correct those defects. (29) The parents could not do anything either since abortions were illegal until 1973. (30) Since then, the wrongful birth cause of action has become more stable and is now recognized in a majority of jurisdictions. (31)

      In 1982, Virginia courts first recognized a claim for wrongful birth. (32) Parents of a child born with Tay-Sachs disease went to their physician for genetic testing during the fourth month of pregnancy to determine if the parents were carriers for the disease. (33) An employee of the health care provider incorrectly labeled the blood samples and the results erroneously showed that both parents were not carriers. (34) As a result, the parents were never given accurate information regarding the condition of their unborn child and the fact that the child would be afflicted with the disease. (35) Without accurate information, the parents were unable to make an informed decision regarding the termination of the pregnancy. (36) Since Tay-Sachs is a serious and painful disease that usually results in death after a few years of life, options such as pregnancy termination are usually acceptable to most couples. (37) When the child was born with Tay-Sachs, the parents sued the health care provider. (38) The court determined the parents were owed a legal duty, the mislabeling of the samples and subsequent misinformation was a breach of that duty, the mislabeling was the cause of the parent's...