Academic journal article Journal of Law and Health

Wrongful Birth and Wrongful Conception: A Parent's Need for a Cause of Action

Academic journal article Journal of Law and Health

Wrongful Birth and Wrongful Conception: A Parent's Need for a Cause of Action

Article excerpt

I. 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.

II. 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.

A. 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. …

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