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Diminished Lives and Malpractice: Courts Stalled in Transition

Published online by Cambridge University Press:  27 April 2021

Barry R. Furrow
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Extract

Medicine is still largely a pre-Darwin, pre-Newton enterprise.. . . We do not yet understand the underlying mechanisms of the major illnesses which plague humanity, and therefore much of what is done in the treatment of illness must still be empirical, trial and error therapy. We are compelled by our limitations to resort to shoring things up, applying halfway technology, trying to fix things after the fact.

The judicial debate continues to rage over the right of a child born suffering from genetic impairments to recover on his own behalf against a physician or laboratory which failed to give his parents correct information about the defect. These “wrongful life” suits are brought by parents on behalf of their child, who in most cases is born suffering from mental or physical defects which could have been detected by genetic screening. In contrast, “wrongful birth” suits are actions brought by parents of a child born as the result of a defendant’s negligence, seeking damages for either the costs incident to the unwanted pregnancy and birth of a normal child, or the costs related to the unexpected birth and care of an impaired child.

Type
Article
Information
Law, Medicine and Healthcare , Volume 10 , Issue 3 , June 1982 , pp. 100 - 114
Copyright
Copyright © American Society of Law, Medicine and Ethics 1982

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References

Thomas, L., Rx for Illich, New York Review of Books 23(14): 3–4 (September 16, 1976).Google Scholar
See generally Trotzig, M., The Defective Child and the Actions for Wrongful Life and Wrongful Birth, Family Law Quarterly 14:15–18 (1980).Google ScholarPubMed
For an extensive list of such decisions for “wrongful birth,” see id. at 15, n.6.Google Scholar
See Furrow, B., The Causes of “Wrongful Life” Suits: Ruminations on the Diffusion of Medical Technologies, Law, Medicine & Health Care 10(1): 11 (February 1982).Google ScholarPubMed
Schroeder v. Perkel, 432 A.2d 834 (N.J. 1981) at 841.Google Scholar
The phrase is used by Judge Handler, concurring and dissenting in Schroeder v. Perkel. Id. at 845.Google Scholar
Id.Google Scholar
Several diminished life suits have involved failures to convey correctly to parents the likelihood that their offspring would possess genetically transmitted impairments, based on the parents' history or defects apparent in another child in the family. See Moores v. Lucas, 405 So.2d 1022 (Fla. App. 1981) (Larsen's syndrome in mother); Schroeder v. Perkel, supra note 5 (first child suffered from cystic fibrosis; physicians treating first child failed to diagnose condition in time for parents to prevent or abort second pregnancy); Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. App. 1980) (negligently conducted tests on parents for Tay-Sachs disease); Turpin v. Sortini, 174 Cal. Rptr. 128 (Cal. App. 1981) (improper diagnosis of older child as having a hereditary total deafness abnormality).Google Scholar
See generally, Omenn, , Prenatal Diagnosis of Genetic Disorders, in Health Care: Regulation, Economics, Ethics, Practice (Abelson, P., ed. 1978) at 151. Omenn groups the technologies chronologically, so that his first four stages are subsumed under my stage 2 which is oriented toward techniques involving the fetus.Google Scholar
Id. at 157.Google Scholar
Other examples include rare vitamin-responsive errors of metabolism, galactosemia, and renogenital syndrome and hypothyroidism. Id.Google Scholar
Marx, , Tracking Genes in Developing Mice, Science 215 (4528): 44, 47 (1982). Methods of gene manipulation may make possible the production of laboratory animal models that can be used to investigate human genetic diseases for which such models are now lacking. Mice having Lesch-Lyhan syndrome, a severe neurological condition caused by a single defective gene, or the thalassemias, which are anemias caused by defective globin genes, are two examples.Google ScholarPubMed
See, e.g., Herbert, F., The Eyes of Heisenberg (Berkley, New York) (1966).Google Scholar
These cases were developed from a personal communication with Dr. H.M. Hildebrandt of Ann Arbor, Michigan (April 6, 1982).Google Scholar
This difference was pointed out to me by Professor Leonard Glantz, whose comments substantially improved this paper.Google Scholar
Speck v. Finegold, 439 A.2d 110 (Pa. 1981).Google Scholar
Turpin v. Sortini, 174 Cal. Rptr. 128 (Cal. App. 1981) [hereinafter referred to as Turpin 1]; 182 Cal. Rptr. 337 (Cal. 1982) [hereinafter referred to as Turpin 1].Google Scholar
Curlender is “unsound under established principles of law and as a sortie into areas of public policy clearly within the competence of the Legislature.” Turpin1, supra note 17, at 129.Google Scholar
Turpin 2, supra note 17.Google Scholar
Turpin 1, supra note 17, at 129.Google Scholar
Id. at n.2.Google Scholar
Turpin 2, supra note 17, at 342–49.Google Scholar
Turpin 1, supra note 17, at 131.Google Scholar
Gleitman v. Cosgrove, 227 A.2d 689 (N.J. 1967).Google Scholar
Turpin 1, supra note 17, at 130, quoting Gleitman v. Cosgrove, supra note 24, at 692.Google Scholar
Speck v. Finegold, 408 A.2d 496 (Pa. App. 1979).Google Scholar
Turpin 1, supra note 17, at 130, quoting Speck v. Finegold, supra note 26, at 508.Google Scholar
Turpin 1, supra note 17, at 130, quoting Gleitman v. Cosgrove, supra note 24, at 692.Google Scholar
Turpin 2, supra note 17, at 346.Google Scholar
D. Dobbs, Handbook on the Law of Remedies §3.1, at 135 (1973).Google Scholar
Id. at 136.Google Scholar
Id.Google Scholar
Id. §3.2 at 142.Google Scholar
For a detailed set of arguments in support of these propositions, see Capron, , Tort Liability in Genetic Counseling, Columbia Law Review 79:618 (1979) at 648–49. Capron's article remains the best reasoned on the subject of wrongful birth and life suits.Google ScholarPubMed
See, e.g., Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970) where the claim was that an automobile accident had precipitated schizophrenia in the 14 year old plaintiff. Testimony in the case revealed that before the accident the plaintiff was “neither a ‘perfectly normal child’ nor a schizophrenic, but a child with some degree of pathology which was activated into schizophrenia by an emotional trauma although it otherwise might not have blossomed.” Id. at 1172 (emphasis in original). Judge Friendly, concluding that the issue precipitating the cause was for the jury to decide, stated: It is no answer that exact prediction of Cynthia's future apart from the accident is difficult or even impossible. However taxing such a problem may be for men who have devoted their lives to psychiatry, it is one for which a jury is ideally suited. Id. at 1174.Google Scholar
Capron, , supra note 34, at 649.Google Scholar
Speck v. Finegold, supra note 16, at 115 (Flaherty, J.).Google Scholar
Id.Google Scholar
Dobbs, , supra note 30, at 136.Google Scholar
Turpin 2, supra note 17, at 349.Google Scholar
Berman v. Allen, 404 A.2d 8, 13 (N.J. 1979).Google Scholar
See, e.g., In re Quinlan, 355 A.2d 647, cert. denied, sub nom. Karger v. New Jersey, 429 U.S. 922 (1976).Google Scholar
See, e.g., Satz v. Perlmutter, 362 So.2d 160, 162 (Fla. App. 1978): “[T]he condition is terminal, the patient's situation wretched and the continuation of his life temporary and totally artificial.”Google Scholar
See, e.g., California Natural Death Act, Cal. Health & Safety Code §§7186-95 (West Supp. 1977); Ark. Stat. Ann. §§82-3801 et seq. See generally, Comment, The California Natural Death Act: An Empirical Study of Physicians' Practices, Stanford Law Review 31:913 (1979), particularly cases cited at 913–14, n.3 and 4.Google Scholar
Shaw, , Ethical Issues in Pediatric Surgery: A National Survey of Pediatricians and Pediatric Surgeons, Pediatrics 60:588 (1977).Google ScholarPubMed
Taub, S., Withholding Treatment from Defective Newborns, Law, Medicine & Health Care 10 (1):4, 9 (February 1982): “[A] decision against treatment which is agreed upon by parents and physicians should be legally unassailable provided certain procedural safeguards are in effect.”Google ScholarPubMed
Sanderson, , Comment: Wrongful Life in California, Malpractice Reporter 1:19 (January 15, 1982).Google Scholar
Friedman, , Legal Implications of Amniocentesis, University of Pennsylvania Law Review 123 (1):92, 154–55 (1974).Google ScholarPubMed
Shapiro, M.H. Spece, R.G., Bioethics and the Law (West, St. Paul) (1981) at 471.Google Scholar
Katz, , Process Design for Selection of Hemodialysis and Organ Transplant Recipients, Buffalo Law Review 22 (2): 373, 402–03 (1973); Note, Asexual Reproduction and Genetic Engineering: A Constitutional Assessment of the Technology of Cloning, Southern California Law Review 47:476, 538-39 (1974). See generally, Calabresi, G. Bobbitt, P., Tragic Choices (Norton, New York City) (1978) (general discussion of how we as a society try to avoid mechanisms which explicitly require us to make individual designs about life or death).Google Scholar
This point is made in Schroeder v. Perkel, supra note 5, by both the majority and concurring opinion. The majority wrote: A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected legal interests. Id. at 839.Google Scholar
Speck v. Finegold, supra note 16, at 118.Google Scholar
See L. Tribe, Channelling Technology Through Law (Bracton, Chicago) (1973) at 275–76. Such a description of the right suggests that the impaired child should have a cause of action against their parents if they choose not to be fully informed. This is a logical position, but one which raises serious questions of the slippery slope sort discussed in this article.Google Scholar
Comment, A Preference for Nonexistence: Wrongful Life and a Proposed Tort of Genetic Malpractice, Southern California Law Review 55(2): 477 (1982) [hereinafter cited as Preference for Nonexistence].Google Scholar
Turpin 1, supra note 17, at 132.Google Scholar
Curlender v. Bio-Science Laboratories, supra note 8, at 488.Google Scholar
In 1981, a statute was enacted prohibiting parent-child litigation: No cause of action arises against a parent of a child based upon the claim that the child should not have been conceived or if conceived, should not have been allowed to have been born alive. 1981 Cal. Stats., ch. 331(a) (to be codified in Cal. Civ. Code §43.6).Google Scholar
Preference for Nonexistence, supra note 54, at 509–10.Google Scholar
Annas, G.J., Righting the Wrong of “Wrongful Life.” Hastings Center Report 11(1): 8 (1981).Google Scholar
See, e.g., Fletcher, , Knowledge, Risk, and the Right to Reproduce: A Limiting Principle, in Genetics and the Law (Milunsky, A. Annas, G., eds.) (2nd ed. 1980) at 131.Google Scholar
Shaw, , The Potential Plaintiff Preconception and Prenatal Torts, in Genetics and the Law, supra note 60, at 225, 229.Google Scholar
See generally, Calabresi, G., the Costs of Accidents (Yale University Press, New Haven, Conn.) (1970).Google Scholar
The norms may be those of the professional group which is indirectly the target of the litigation, see Schuchman, , Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code, George Washington Law Review 37:244 (1968); or norms of the larger society which the court is articulating, see Wellington, Common Law Rules and Constitutional Double Standards, Yale Law Journal 83:221, 248 (1978).Google Scholar
The parents' pain and suffering has been the only disputed issue in many of the cases which have allowed the wrongful birth cause of action. See Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978).Google Scholar
Turpin 1, supra note 17, at 134.Google Scholar
Damages may not be paid out in a lump sum in such cases but can rather be disbursed at regular intervals, in order to avoid the problem of overpayment if the child dies prematurely.Google Scholar
See, e.g., Kronick, , Community Responsibility for Accident Victims. Hastings Center Report 9(5): 11 (1979). See generally, Calabresi, supra note 62.Google ScholarPubMed
Institute of Medicine, Beyond Malpractice: Compensation for Medical Injuries (1978) at 68.Google Scholar
Schwartz, , Kowesar, Doctors, Damages and Deterrence: An Economic View of Medical Malpractice (Rand Corp. Report, June 1978).Google ScholarPubMed
Roemer, , Controlling and Promoting Quality in Medical Care, Law and Contemporary Problems 35:284, 297 (1970). For doubts as to the efficacy of such “signalling,” see Brook, Brutoco, Williams, , The Relationship Between Medical Malpractice and Quality of Care, Duke Law Journal 1975:1197.Google Scholar
See Capron, , The Continuing Wrong of “Wrongful Life,” in Genetics and the Law, supra note 60, at 81.Google Scholar
See Capron, , supra note 34, at 625. See also Comment, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, Yale Law Journal 87:1488 (1978).Google Scholar
Milunsky, A., Prenatal Genetic Diagnosis and the Law, in Genetics and the Law, supra note 60.Google Scholar
See Golbus, et al. , Prenatal Genetic Diagnosis in 3000 Amniocenteses, New England Journal of Medicine 300:157 (1979).Google ScholarPubMed
Editorial, Prenatal Diagnosis of Down's Syndrome, Journal of the American Medical Association 242(21): 2326 (1979).Google Scholar
Healy, , The Legal Obligations of Genetic Counselors, in Genetics and the Law, supra note 60, at 74.Google Scholar
Andreen, J. dissenting, Turpin 1, supra note 17, at 135.Google Scholar
This claim is most fully articulated by Judge Handler in his opinion in Schroeder v. Perkel, supra note 5, at 844.Google Scholar