Unlike a wrongful birth lawsuit, wrongful life lawsuits are filed by the child who was born. Wrongful birth actions are brought by the parents. Wrongful life lawsuits are more difficult because fewer birth injuries will support a lawsuit.
In this article, our California personal injury lawyers explain:
- 1. What are wrongful life lawsuits in California?
- 2. Who can be held liable in a wrongful life lawsuit?
- 3. What kind of compensation can a wrongful life lawsuit recover?
1. What are wrongful life lawsuits in California?
A wrongful life lawsuit is a personal injury claim. It is brought by a child who was born because a doctor committed medical malpractice. That malpractice led to the child being born with severe medical conditions. Those conditions are either genetic or congenital, and have led to the child’s life with a severe disability.
To prove a wrongful life cause of action, the child victim has to show:
- The doctor’s negligence failed to inform the child’s parents of the risks of the child’s disability, or perform the tests that would have discovered those risks,
- The child was born with a disability,
- If the child’s parents had known of the disability, they would not have had the child, and
- The doctor’s negligence was a substantial factor in the child’s birth.1
1.1. When does the doctor’s malpractice have to occur?
In order to succeed in a wrongful life claim, victims have to show that the doctor’s negligence amounted to medical malpractice. That malpractice that caused the injury could have happened before or after the conception of the child.2
Malpractice that happens before the child’s conception is often the doctor’s failure to detect genetic conditions in the parents (“negligent genetic counseling”). This can prevent the parents from choosing not to have children, as they would be plagued with the hereditary condition. As a result, the child is born with a life-altering medical problem.
Example: A doctor fails to diagnose the parents’ first child as having hereditary deafness. One year later, the parents have another child, who is also deaf. They may try to sue the doctor on the basis that the defendant’s negligence led them to have a second child they might not have had otherwise.3
Malpractice that happens after the child’s conception often fails to diagnose a congenital defect in the fetus. This can keep the parents from deciding to terminate the pregnancy. The child is then born with a birth injury that impairs the rest of their life.
Example: Doctors take a blood sample from a pregnant woman, but do not test it. They fail to discover the fetus has congenital hydrocephalus and spina bifida. This genetic impairment affects everyday life.4
1.2. Is it always malpractice if the doctor failed to perform genetic testing?
It is only considered malpractice to fail to administer a genetic test if the test would probably have discovered the birth defect.
Many wrongful life lawsuits claim that the doctor’s negligence consisted of not performing a genetic test. They argue that, had the doctor done the test, the child would not have been born with a medical condition.
However, if odds were that the test would not have discovered the problem, it is not considered malpractice to not administer the test. If the test would have detected the problem less than 50% of the time, negligently failing to do the test did not cause the child’s injuries.
Example: Doctors did not commit malpractice by not performing an Alpha Fetoprotein Test on a pregnant woman who gave birth to a child with Down’s syndrome. The test only detects the condition 20% of the time. An amniocentesis is more accurate.5
1.3. What kinds of injuries can support a wrongful life lawsuit?
In California, wrongful life lawsuits only succeed if the victim suffered especially severe injuries. Mere social setbacks are not enough.
This standard is higher than for wrongful birth cases. Those lawsuits only have to show that the parents could not make an informed medical decision.
Examples of congenital and birth injuries that have supported a wrongful life lawsuit in California have included:
- Hereditary deafness,6
- Tay-Sachs disease (a genetic disorder that destroys nerve cells and leads to death in early childhood),7
- Congenital hydrocephalus and spina bifida,8 and
- Autosomal dominant polycystic kidney disease, a potentially fatal kidney problem.9
Examples of injuries or setbacks that have not supported wrongful life lawsuits have included:
- Social stigmatization of being born out of wedlock,10 or
- The unrealized risk of being born with a mental disability.11
Predictably, there are ethically loaded lawsuits. Many pro-life activists object to wrongful life cases on the basis that parents should not measure their baby’s value of life based on his/her disabilities, and that nonexistence is somehow better than being disabled. And they do not believe doctors should incur tort liability for actions – or inaction – that ultimately led to a disabled child instead of a healthy child being born.
2. Who can be held liable in a wrongful life lawsuit?
The doctor or physician whose malpractice failed to detect the medical condition can be held liable. The doctor’s employer – often a clinic or hospital – can also be held liable through vicarious liability if the malpractice happened on the job.
People who are outside the medical profession cannot be liable in a wrongful life lawsuit.12 These people or companies do not have a legal duty to keep children safe or healthy.13
3. What kind of compensation can a wrongful life lawsuit recover?
Wrongful life lawsuits can only recover losses associated with the birth injury. This makes them different from regular personal injury or medical malpractice claims. These recoverable losses include special damages for such extraordinary expenses as:
- Medical expenses for treating the birth injury,
- Future medical care bills associated with special care the child needs,
- Specialized non-medical the child will need, like wheelchairs and special education, and
- Home modifications to accommodate the child’s disabilities and physical injuries.
It does not include general damages, which are normally available in personal injury cases:
- Physical pain and mental suffering and anguish,
- Lost wages,
- Lost earning capacity, and
- Loss of consortium.14
In some cases, both the child files a wrongful life lawsuit and the parents file a wrongful birth claim over the same incident. In these cases, the compensation that one lawsuit recovers gets deducted from similar types of compensation the other lawsuit stands to recover.15
For further help…
Wrongful life actions stem from some of the worst injuries you can suffer. You may be entitled to compensation for having to deal with such a serious malady. Contact our medical malpractice lawyers today to get started on your case.
Also see our article on wrongful death lawsuits.
- California Civil Jury Instructions (“CACI”) 513. (See also in other states: Zepeda v. Zepeda, 41 Ill. App. 2d 240, 190 N.E.2d 849 (1963); Phillips v. United States, 508 F. Supp. 537 (D.C.S.C. 1980); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (New York, 1978); Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (1974); Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (New Jersey Supreme Court, 1984); Speck v. Finegold, 268 Pa. Super. 342, 408 A.2d 496 (1979); Goldberg v. Ruskin, 113 I11. 2d 482, 499 N.E. 2d 406 (Illinois Supreme Court, 1986); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984) (baby born with severe defects after doctor misdiagnosed rubella); Wrongful life’: The right not to be born”. Tulane Law Review. 54 (2): 480–99. PMID)
- Gami v. Mullikin Medical Center, 18 Cal. App. 4th 870 (Cal. App. 1993).
- Turpin v. Sortini, 643 P.2d 954 (California Supreme Court 1982).
- Gami v. Mullikin Medical Center, Supra.
- Simmons v. West Covina Medical Clinic, 212 Cal.App.3d 696 (Cal. App. 1989).
- Turpin v. Sortini, Supra.
- Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (Cal. App. 1980).
- Gami v. Mullikin Medical Center, Supra.
- Johnson v. Superior Court, 101 Cal. App. 4th 869 (Cal. App. 2002).
- Stills v. Gratton, 55 Cal. App. 3d 698 (Cal. App. 1976).
- Foy v. Greenblott, 141 Cal. App. 3d 1 (Cal. App. 1983).
- Hegyes v. Unjian Enterprises, Inc., 234 Cal. App. 3d 1103 (Cal. App. 1991) (no legal duty when birth injuries were allegedly caused by a car accident).
- Elsheref v. Applied Materials, Inc., 223 Cal. App. 4th 451 (California Court of Appeals, 2014) (no wrongful life claim against father’s employer, who exposed the father to radiation on the job).
- See Turpin v. Sortini, Supra, and Johnson v. Superior Court, Supra.
- See Turpin v. Sortini, Supra.