Impaired Children and Tort Remedies: The Emergence of a Consensus

Extract

The “medical malpractice crisis” in the 1970s involved not only a greater number of suits, but also the emergence of new sorts of claims against medical practitioners. One such claim was the wrongful birth suit, where parents sued their physician on their own behalf for negligence that resulted in the birth of an unwanted child. A related claim, wrongful life, involved a suit brought on behalf of a defective infant against a physician or laboratory that failed to give correct information about a potential defect to the parents. These claims have been the subject of much controversy for judges and commentators.

The debate over wrongful life suits involving “impaired” children continues. Courts in Michigan have recently rejected the wrongful life cause of action, while, in Washing ton, the action has been allowed. Some academic critics have also continued to oppose the wrongful life action. In a recent commentary in the pages of this journal, one critic wrote: “Wrongful life actions, by whatever name they may be called, accord with neither logic nor experience, and should not be allowed.”