Academic journal article Journal of Legal Economics

Compensation and Wrongful Life: A Positive Economic Perspective

Academic journal article Journal of Legal Economics

Compensation and Wrongful Life: A Positive Economic Perspective

Article excerpt

Introduction

The use of diagnostic and genetic testing prior to and during pregnancy is becoming increasingly common, and with this testing has come a significant increase in the number of wrongful birth and wrongful life lawsuits (Welker 1983). Typically, these lawsuits involve an allegation that the defendant (a physician or other health care provider) was negligent in failing to provide sufficient prenatal or preconception information to the pregnant mother concerning the risk of fetal abnormality, and as a result, pregnancy was carried to term and the child was born with disability (La Croix and Martin 1995). The plaintiffs (the parents and/or the handicapped child) then sue, claiming compensation for this alleged wrong. Wrongful birth claims are brought by the parents of a disabled child, alleging that the mother's physician failed to inform her of the risk of having a child with the disability in question, thus depriving her of the opportunity to choose to avoid conception or to terminate the pregnancy. The claim is for the increased costs associated with caring for a child with disabilities. Wrongful life actions are brought against the mother's health provider by a child born with disabilities, alleging a failure to inform the child's mother of the risk of congenital or heritable conditions so as to permit her to avoid conceiving or, if she is already pregnant, to terminate the pregnancy. In this context, the essence of the child's claim is that the child ought not to have been born at all, and that his life with a disability has caused and will continue to cause pain and suffering, as well as financial loss (Pace 1986). Even if the wrongful birth action is becoming little by little accepted as a valid category, the wrongful life action still encounters stiff resistance due to the extreme difficulty in assessing damages in such a case. The compensation will be based on a comparison between the value of nonexistence and the value of existence in a disabled state. But how can a judge put a monetary value on nonexistence? No comparison is possible, and therefore, no damages can be estimated.

In the cases where a wrongful life claim was advanced (usually together with a wrongful birth claim brought by the child's parents), the courts have generally dismissed this aspect of the case, citing public policy reasons (Heister 1980). In the cases where wrongful life was recognized as a cause of action, the court estimated a compensation because of "birth with disabilities." However, in November 2000, the French court allotted a compensation to a disabled child because he was "born at all," and he will have to endure life with a handicap (Perruche 2000). It is the first time that a court recognized that the life of a handicapped child is wrong. To our knowledge, there has never been a similar example in American jurisprudence. In the United States, wrongful life suits have been brought by parents of the handicapped child for the damage he suffered as a result of the birth. Since there is a unique right of recovery in France that does not exist in the United States, a detailed description of the Perruche case, including an explication of how the French court thought about this case, is useful and of considerable interest to readers.

Nicolas Perruche was born on 14 January 1983. He was profoundly disabled as a result of the fact that his mother had rubella during the first trimester of her pregnancy. The French court has conceded the responsibility of the doctor who was negligent in failing to detect and diagnose the rubella infection in the pregnant mother. If the mother had been properly advised by the doctor and had been aware of her state, she would have terminated her pregnancy, and her son, Nicolas, would not have been born with profound disabilities. Therefore, a causal link between a doctor's mistake (diagnostic error) and a child's disability was recognized. A wrongful life claim was brought by Nicolas Perruche, who was born with profound disabilities. …

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