congenital disasility, medical negligence

164 Pages·2000·11.41 MB·English

CONGENITAL DISASILITY, MEDICAL NEGLIGENCE &
'WRONGFUL LIFE' ACTIONS: THE LIMITS OF LIABILITY IN
ANGLO-AlMERICAN TORT LAW
Dany Merkel
A thesis submitted in conformity with the requirements
for the degree of Master of Laws
Graduate Department of the Faculty of Law
University of Toronto
OCopyright by Dany Merkel 1999
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CONGENITAL DISABUITY, MEDICAL NEGLIGENCE & 'WRONGFUL
LIFE' ACTIONS: TEE LIMITS OF LIABILITY IN ANGLO-AMERICAN
TORT LAW
Dany Merkel
Master of Laws, 1999
Graduate Department, Faculty of Law
University of Toronto
This Thesis addresses the difficult legd and conceptual issues caised by the 'wrongful life'
cause of action in Anglo-Amencan tort law. 'Wrongful iife' actions are brought on behalf of
congenit ally disabled children aileging medical negligence b y a def endant p hysician for
failing to avail the child's parents of the opportunity to avoid the child's conception andl or
birth. Because the child in such a case never had the chance to be born 'healthy' or 'whole',
her cornplaint tends to be characterised by the Courts as a claim for negligently allowing her
to be born, a daim for 'wrongful entry into life' or 'wron,@l life'.
This Thesis argues that the 'wronghil life' label is emotive and distorts the mie nature of the
underlying claim, which is arguably akin to a regular medical malpractice action for prenatai
injury. A 'person affecting' conception of harm, which pady underlies and explains the
judicial reluctance to allow 'wrongfbl life' actions, is considered in an effort to better
understand the true Iimits of liability in Anglo-American tort law.
I would iike to thank my supervisor, Professor Bernard Dickens, my second reader, Professor
Bruce Chapman and my teacher and mentor during the year, Professor William Harvey, all of
whom were generous with their time notwithstanding very busy schedules.
CHAPTER 1: THE DEVELOPMENT OF THE CEILD'S RIGHT OF ACTION FOR NEGLIGENTLY
INFLICTED PRENATAL INJ URY 11
~.-n--*~~-.~*~n--~.~-nn-**n-~~-~*~.-~~Ht~n~~~n.m.mn*nn~
1. I THEE ARLYC OMMONL AW & THE REQUIREMENTOLFI VE B IRTH: WALKERD, ~ETRIC&H A WRE.. .., 1 1
1 -2 DEEMINGLE GAL PERSONALITYA T THE TIMEO F THE WRONGM: OWREN~," RAMWYAS ., .,.. ,.. .., ,..,,,....,, 15
1.3 THE VIABILITRYE QUIRCMEN~IN AMERICA& A RIGHTTOB EGINL IFEW ïTH A SOUNDB ODY& MWD:
BONBRESTV .K an .......,,,-...----..~-----.-...-- ...- .-... . . --. .....................16
1 -4 THE UNBORNC HILDA S A FORESEEABPLLE A ~WA:T TV . RAMA,D UVALV . SEGUIN& BURTONV .
~SUNGTONH A- .. .-.,.,... ... ,,., .- -..-- . -.-..-- . --.--- . . . . .. . . . . . .... ... .. . .. .. .. ... . .- . - . . .. . .. . - 1 8
15 THES TATUS OFME UNBORN CHILD & 'WRONGFULD EATHB' EFORE BIRTH .............................2..2. .....
1 -6 ANALYS IS OF THE FORESEEABLEP LAINTIFA PPROACH.. ....................................-...-..-...-......-.-.2..4.- ..---.
1.7 CONTINUINWGR ONGS& THE EXTENSIOONF LIABW TO PRE-CONCEPTIOTNO RTSJ:O RGENSEX
RENS&OW&B ERG~ESE.,,R... ....,.....-.. .........-...-..--.-.-- ......... ...... ............................2..7. ........
EEEEEE.E.EEEEE..EEE.EEEE...,.
1.8 THE'N O DUN' RULE & SUCCESSNEGENERATIOCNLA MS:A UAU & THE 'DES GRANDDAUGHTER'
CHAPTER 2: THE 'WRONGFUL LIFE' CAUSE OF ACTION BEFORE ANGLO-AMERICAN
COURTS
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CHAPTER 3: ANALYSE OF 'WRONGFUL L m 7A CTIONS: A WRONG WITHOUT A
3.1 JNTRODUCTION&OVERVI.E..W... ..........................................................................................7.6.. ............
3.2 THEDUTYQUESTION:ARIGHTNOTTOBEBORNORAP~A~~ER~GHTTO~VELIFE-CREAT~G
DECIS~ONMSA DE BY ONE'SP ARENTS.?. ...........................................................................7.8.. ...........
3.3 CAUSATIONO,M ISSIONS& INJURY: AN ANALOGY WlTH THE LACK OF INFORMED CONSEKTC ASESA 7
3.4 THEA SSESSMENT OF DAMAGESIN 'WRONGFULLI FE' ACTIONS: THEC OMPENSATORPYR INCIPLOEF
TORTL AW(R ESTITI/TIO IN INTEGRUM) & REMOTENESOSF DAMAGE.. .-......-,....O. 97
OOO~.O...OOOOOOO---....-----.-.-.-----.-.---
3 -5 LEGALLY COGNISABLHEA RM & STATESW ORSET HAN NON-EXISTENCE AN ANALOGY W THE
(OTHERE) NDO F LIF.E.. ............................... ..... ........................................ 108
CHAPTER 4: ANALYSIS OF 'WRONGFUL LIFE' ACTIONS: A 'PERSON AF'FECTING7
CONCEPTION OF HARM & TAE LIMITS OF LIABILITY IN ANGLO-AMERICAN TORT LAW 121
4.1 'WRONGFULLI E' ACTIONS& A 'PERSON-AFFECTINGC' ONCEPTIONO F HARM. ......................... ..,. 1 2 1
4.2 THE PLIC CATIONS OF A 'PERSONA FFECTINGC* ONCEPTIOONF WMA:R BITRARDYlS nNCTIONS &
UNJUSTL ~MITATION..S. ........................................................... .........................1 35
4.3 CONGEN~~DAISLA BILITYM, EDICALNEGLIGENC&E m ~L MITSO FLIABLTTYM ANGLO-AMERICAN
TORTL AW:A JOB FOR THE LEGISLATURE?...-. ..-.. -~...~...-.~--~--..-....-..-.-..~..-................... . . .- .143
What in the past was accepted as cruel destiny causing tragedy which was to
be borne by the individual himself .,. is now seen as a situation whose
creation, avoidance and compensation affect society. At that point it is not
far-fetched to ask whether the existence of the defect might not place legal
responsibility upon someone.'
INTRODUCTION
Until recently, medical science was unable to provide parents with the means
of predicting the birth of a defective child. Now, however, the abiiïty to
predict the occurrence and recurrence of defects attributable to genetic
disorders has improved simcantly, Parents cm determine before
conceiving a chiid whether their genetic traits increase the nsk of that child's
suffering fiom a genetic disorder such as Tay-Sachs disease or cystic fibrosis.
After conception, new diagnostic techniques such as amniocentesis and
ultrasonography can reveal defects in the unborn foetus, .. . Parerrts may
avoid the birth of the defective child by aborting the foetus. The mcult
moral choice is theirs.'
The notion that the birth of a child afflicted with disability or disease could be a moral, let
done a legai, harm to either the parents or the child concerned, is an anathema to a society
that has its roots in a Judeo-Christian ethic of the sanctity of human lifeo3 Until recently, the
birth of a child was considered variously by members of the judiciary to be a "blessing", a
'kause for celebration" and "not a matter for compensation"? Furthemore, society and the
law have traditionally regarded congenital disability and disease as the product of cruel
destiny or fate rather than something that could be prevented by human intervention?
1 Judge Barak in CA 5 18/82, Zeiizov et al- v- Katz et al, 40 PB, (2) 85 (Israeli Suprerne Court) (Translated into
English by Dr. Zive Weil, 9 Med. & Law 865 at 885)[hereinafter Zeitzov, cited to Med- & Law].
'
ffarbeson v. Parke-Davis, (1 983) 98 Wash-2d 460,656 P.2d 483 at 491 [cited to P.2d].
E.g. See John Harris, 'The Wrong of Wrongful Life" ( 1990) 17 J.L. & Soc'y 90 at 9 1.
4 E-g. Sec Custodio v. Bauer (1 967) 25 1 Cal. App-îd 303,59 Cal. Rptr. 463 (opening the door to recovery for
the birth of an unplanned hedthy child); Troppi v. Sca& (1971) 187 N.W. 24 5 1ï (Mich- CL App-)(dlowing
parents to sue pharmacist who negligently filled a prescription for birth control pills with a tranquilliser for birth
of 8' child). Doiron v. Orr (1978). 20 O.R. (2d) 7 1.86 DLR.( 3d) 719 at 723 (Ont H.CJ.)(describing claim
for child rearing expenses for the birth of a healthy child as "simply grotesque").
5 See gcnenlly, "Disability and Disease" in Encyclopedia of Bioethics, rev, ed, Warren Thomas Reich ed.,
(New York: Macmillan) at 976ff. 'Congenital disability' refers to a condition that is existing frorn, and usually
However, attitudes have changed dong with advances in science and medicine. As
knowledge continues to grow as to the ongins and types of congenitai disease: for exarnple,
as a result of the Human Genome ~rojectrn ew ways to predict and detect, and less
cornrnonly cure, such diseases are king found. A new service industry in genetic screening
and counselling has sprung up over the last few decades that has enormous potential as a
means of preventing the births of senously disabled child.ren8 As a result of these
developments, Iegai clairns are king brought for the births of congenitdy disabled children
where there is an allegation of negligence in genetic testing or advice-
A 'wron,aful birth' action is an action brought by the parents of a congenitally disabied child
who claim they have been depnved by the defendant's negligence of the opporninity to avoid
the child 's conception or birth with such disabilities or disease. A 'wronghl life' action is an
action brought on behalf of the congenitaUy disabled child him or herself, complaining that
the defendant's negligence depnved her of the opportunity to avoid her conception and/ or
birth with congenitai disabiiities or disease.
The defendant's negligence in 'wrongful Life' and 'wrongful birth' actions rnay arise from a
variety of circumstances and may occur before conception, while the child is in utero or even
ex utero. For exarnple, there may have been negligence in the failure to detect or
communicate to prospective parents that they are carriers of a geneticdly transmissible or
be fore, birth: Academic Press Dictionary of Science and Technology, online:
<httpd/apnet.~om/inscieht/l2101 996lcongen L.html> (last modified: 25 December. 1998).
6 Scient ists have alrcady descri bed more than 3000 genetic diseases: M.S. Cardwell, "Reproduction Patients" in
S-Sanbar, A-Gibofsky, M. Firestone & T-R- LeBlang, eds., Legal Medicine, 3d ed. (Mosby: Missouri, 1995) al
432. However, it is estimated that the causes of about 60 percent of birth defects in the United States are still
unknown: "Birth Dcfects information" Online: March of Dimes Homepage
<hrtp://www.modimes.org/HealthLib~a~~2/BirthDefects/Default.htm>.
7 The 'Human Genome Project' is an ambitious effort kgun in 1990 by scientists world-wide to map and
sequence the entire human gene pool by the year 2005: Philip R. Reilly, "Genetics and the Law" in
Erqclopedia of Bioethics, supra note 5 at 968.
Ibid. at 969. Statistics show that between 120,000 and 150,000 or between 3% and 4% of al1 babies bom each
year in the United States have a serious birtfi defect. Birth defects are the leading cause of infant mortality in
the United States, accounting for over 8,000 infant deaths each year: "National Perinatd Statistics", Online:
Mach of Dirnes chtt~://www.modimes.or~ealthLib~2/Fa~1sFig~r~s/Default~htm~~
hereditary disease9 Altematively, the alleged negligence could be in the failure to wam a
prepant woman of the increased nsk of damage to her foetus from exposure to German
measles dunng the fmt trimester of pregnancy," or of having a chdd with Dom's syndrome
if the woman is of advanced matemal age.ll The negligence might also entai1 a fdure to
advise a pregnant woman of the avaiiability of amniocente~isc,h~o rionic villus samphg or
u ~ u a s o n o ~ r ato~ dhe~te,c~t a~ d efective Although there have not yet been any cases
on point, to my knowledge, 'wrongful birth' and 'wrongful life' actions could also &se ex
uiero, for example, in the negligent selection of a damaged embryo or gamete for
implantation as part of fertility treatment?
9 E-g.N accasiz v. Burger, (1982) 290 S,E2d 825 (Va.)(Tay Sachs disease); Curlender v- Bioscience
Laborarories.( 1980) 1O 6 Cal.App.3d 8 1 1, 165 Cal, Rptr. 477 [hereinafter Curlender cited to CaLApp3d.](Tay
Sachs disease); Goldberg v. Ruskin (1986) 11 3 Ill2d 482,499 NE2d 406 [cited to N.E.2dI (Tay Sachs
disease); Schloss v. Miriam Hospital, ( 1999) WL 4 18 75 (R-1, Super.) online: WL (Tay Sachs disease); Turpin v.
Sortini. ( 198 1) 174 Cd. Rptr. 128,643 P. 2d 954 (hereditary deafness); Lininger v- Eisenbaum, ( 1988) 764 P-
2d 1202 (Colo.)(hereditary blindness); Park v. Chessin, (1 976) 400 N.Y.S. 2d 204, ( 1977) 440 N-YS. 2d 11 0
(polycystic kidney disease); Bruggeman v. Schimke (1986) 239 Kan, 245,718 P 2d 635.
10 E-g.J acobs v. Tizeimer, (1975) 5 19 S.W. 2d 846 (Tex.); Gleitman v. Cosgrove (1967) 296 N.Y.S- 2d 87,49
N.J.22.227 A.2d 689 [hereinafter Gleirrnan, cited to k2dI; Procanik v. Cillo (1981) 97 NJ. 339,478 A2d 755,
[cited to A.2dI; Smith v. Cote (1986) 128 N.H. 231,513 A.2d 34L[cited to A,2d]; Blake v. Cruz (1984) 108
Idaho 253.698 P.2d 3 15 [cited to P.2dl; McKay v- Erser Area Healrh Autho~-@[ 198212 -411 ER 77 1, 1 QB
1 166.2 WLR 890 (U-K CA)[hercinafter McKqÿ, cited to 1 QB 1 1661.
II E-g. Becker v. Scirwarrz (1978) 386 N.E.2d 807 (N.Y.)4,1 3 N.Y.S-2d 895 [cited to N-E. 2d-1; Berman v.
Allari (1979) 404 A.2d 8,80 NJ. 421 (N-Y)[C ited to A,2d]; Etkind v. Suarez. (1999) WL S98G1978 (Ga-)
online: WL; James G. v. Caserra, (1985) 332 S.E.2d 872 (W-Va).
''
'Amniocentesis' is a simple procedure usually performed at 3 to 3 4i months of pregnancy. to test the foetus
for genetic abnormalities. It may be offered because of materna1 age, a previous child or pregnancy with a birth
defect, if there is a farnily history of genetic disease or suspected neural tube defects: "Prenatal Screening Fact
SheetT*o nline: March of Dimes Home Page
~hrt~://www.modimes.org/HetahlL ibnrvUFactS heeWefaul t.htrn>.
l3 'CTltrasonognphy' is the use of high-frequency sound waves for creating an image of the foetus and can be
used to diagnose birth defects in body structure such as missing limbs, cleft Iip and spina bifida as well as
malformations of intemal organs. 'Chorionic villus sampling' (CVS) is a biopsy of the placenta, used to test for
most, but not dl, of the sarne birth defects as amniocentesis. The test can be performed earlier than
uluasono,onphy between 10 & 12 weeks after a woman's last mensuual period, but has slightly greater risk of
miscarriage: "Prenatal Screening Fact S heet", Ibid 'Matemal blood tests* are also now routinely O ffered by
physicians of their pregnant patients to identib certain senous binh defects in high nsk pregnancies, including
spina bi fida (open spine) and Down syndrome (a c hromosomat disorder): Ibid
14 E.g. Alqrcijay v. Sr. Luke 3-Roosevelt Hospital Cenrer (1 984) 483 N.Y.S.2d 994,63 N.Y.2d 978,473 N.E.2d
244 [Cited to N.E.2d](Down's syndrome); Walker v. Man (1990) 790 P. 2d 735 (Ariz-) (rubella); Garrison v.
Medical Cenrer of Delaware, (1989) 58 1 A-2d 288 (congenital rubella syndrome).
'*
See further infra notes 2 1 1 & 686-687 & accompanying text-
'WronS$bl life' and 'wrongfid birth' actions have akeady been brought in respect of
negligent genetic counselling for a variety of known conditions. These include teratogens;16
autosomal dominant conditions that would be apparent in parents;17 autosornai recessive
conditions many of which could be discovered by carrier or prenatal testing;18 and x-linked
conditions that could be discovered by prenatal testingu The types of congenital disordea,
in relation to which these actions are brought, will continue to change and grow as new
genetic markers are discovered from which tests can be developed for the early detection of
disea~e.~'
'Wronagfbl iife' and 'wrongful birth' actions are distinguishable from so-cded 'wrongfül
conception' actions, which are actions brought by the parents of a healthy child who sought
to avoid the child's conception and birth?' 'Wrongful conception' claims generally arise
from the negligent failure to warn of the risk that a contraceptive procedure might fail? The
parents in a 'wron~@ûl conception' case seek to recover the costs associated with the
pregnancy and birth of the child, including sometimes dso the cos& of raising the child.
While there is no consistent approach to the proper scope of recovery of damages in either
'wrongfül birth' or 'wrongful conception' cases, both causes of action are now weLl
16 E.g. Rubella (Jacobs v. Theimer, supra note 10): Dilantin (Harbeson v. Parke-Davis. supra note 2).
17 E-g, Neurofibrornatosis (Speck v. Finegofd. (1979) 497 Pa. 77,439 A.2d 110 [cited to A-2d]; Effisv .
Sherman, (1986) 5 15 A.2d 1327 (Pa,); Polyposis coli (Brubaker v. Cavenaugh, (1982) 542 F. Supp. 944);
Larsen's syndrome (Moores v. Lucas. (198 1) 405 S. 2d 1022 (Fia-DistApp.)).
In
Cystic fibrosis (Shroeder v. Perkel, (198 1) 87 NJ. 53,432 A.2d 834 [cited to A.2dI): Polycystic kidney
disease (Park v. Chessin. supra no te 9); Hereditary deafness (Trtrpin v. Sortini. supra note 9)(Tay-Sach s
disease); (Curlender. supra note 9).
l9 Duchenne muscular dystrophy (Nelson v. Krusen. ( (1 982) 635 S.W. 2d 582; Hereditary blindness (Liiiinger v.
Eisenbaunt, supra note 9; Down Syndrome (Cal1 v. KezinT'm, 185 Cal. Rptr. 103 (1982)); Haemophilia
(Siemieniec v. Lutheran Gen, Hosp., 1 17 I11.2d 230,s 12 N.E- 2d 69 1 (1987)[cited to NE.]), The above
information was collated from M.S. Cardwell, supra note 6 at 433 & from my own research-
20 For example, recent statistics show that the incidence of children born in the United States with the HN virus
has increased to approximately 1 in 2,700 births, cornpared to approximately 1 in 2,000 for congenital syphilis
and 1 in 100,000 for congenital rubella syndrome: "Categories of Birth Defecls" Online: March of Dimes
Homepage chtî~~/www.modimes.or9/HealthLibnrv2/factsf~ures/bd~ble.htm~.
2.1. These actions are also sometimes referred to as 'wrongful pregnancy' cases.
-
Ho wever, 'wrongful conception' cases may also arise from the negligent performance of a contraceptive
procedure, such as sterilisation, vasectomy or abortion.
entrenched in Anglo-Amencan juri~~rudence.I~n contrast, however, apart from a small
number of Arnerican cases allowing the action," Anglo-Amencan Courts have
ovenvhelmingly dismissed 'wrongful life' actions as stating no valid legai c~aimB.~ec ause
the rejection of 'wrongfbl life' actions is usually detemiined on a motion for summary
judgement brought by the defendant, the child is denied the opportunity to proceed to triai to
prove her case under the individual elements of the tort of neagence.
'Wronmoful life' actions raise speciai conceptuai problems that are not also raised by the
'wron~b~irlt h7 cause of action. The problems arise fiom traditional negligence p~ciples,
according to which the plaintiffs damage or cornpensable h m i s determined by a
cornparison between the plaintiffs current condition and the condition the plaintiff would
have been in had the wrong not occurred. Because in a 'wrongful Iife' action, 'but for' the
de fendant's negligence, the child would not exist, her cornplaint tends to k characterised by
the Courts as a daim for dlowing her to be born, for 'wrongful entry into life' or 'wron,oful
~ife'
,'6
As a result of this characterisation of the child's daim, Courts that have considered the cause
of action, perceive that they have become entangled in a legal minefield of existential
conundnims, including as to whether an impaired life is worih living, for which they are ili-
equipped to deal. This has prevented analytical clarity in the decisions and has resulted, in
the overwhelming majonty of cases, in judges 'throwing their hands in the air' and declaring
that the action is simply not justiciable.
"
For American 'wrongful binh' cases, see infra notes 256,257 & 258. For English 'wrongful birth' and
'wrongful conception' cases, see infra notes 368 & 369, respectively. For Canadian and Austraiian 'wrongful
birth' and 'wongful conception' cases, see infra note 37 1.
See infra notes 260-262.264 Sr 265,
25 For Arnerican 'wrongful life' cases, see infra note 263. For the leading English 'wrongful life' case, see infra
note 353. For a discussion of Austraiian and Canadian cases, see below notes 370ff and accompanying text.
Interestingly, Courts in both Gennany and South Afrka have also rejected the 'wrongful life' cause of action
for similm reasons as given by American Courts: E-g. Friedman v. Glicksman 1996 (1) SA 1 134 (Witwatersand
Local Division); Bundesgerichtshof 18 Jan. 1983 (German Suprerne Court) cited in Carel JJ-M. Stolker
"Wrongful Life: The Limits of Liability and Beyond (1994) 43 1.CL.Q. 52 1 at n.2.
"
McKq. supra note 10 at 1 179.