In California, a wrongful life lawsuit is a personal injury and medical malpractice claim brought by a child, alleging that a doctor or similar party’s malpractice caused them to be born with life-altering birth defects or difficulties. These difficulties essentially prevent the children victims from living a full life.
Here are five key things to know:
- Potential defendants are doctors, surgeons, and mental health institutions.
- The compensation is limited to the losses associated with the birth injury such as medical expenses.
- Children are not entitled to pain and suffering in wrongful life cases.
- Wrongful life lawsuits are different from wrongful birth lawsuits, where parents claim they would not have had the baby if the doctor warned them it would be severely incapacitated.
- Parents can claim the same damages in wrongful birth lawsuits as those claimed by children in wrongful life cases.
Our California personal injury attorneys will explain the following in this article:
- 1. What is a wrongful life cause of action?
- 2. Who are the defendants in a wrongful life claim?
- 3. What compensation can a child recover?
- 4. What are wrongful birth cases?
Only a handful of states, including California, permit wrongful life lawsuits.
1. What is a wrongful life cause of action?
To bring a successful wrongful life claim in California, you need to prove the following:
- That doctor negligently failed to diagnose or warn the child’s parents of the risk that the child would be born with a genetic impairment/disability, OR the doctor negligently failed to perform appropriate tests or advise the child’s parents of tests that would more likely than not (more than 50%) have disclosed the risk that the child would be born with a genetic impairment/disability;
- That child was born with a genetic impairment/disability;
- That if the child’s parents had known of the risk of the genetic impairment/disability, their mother would not have conceived them or would not have carried the fetus to term; and
- That doctor’s negligence was a substantial factor in causing the child’s parents to have to pay extraordinary expenses for the child.1
Doctors typically screen for genetic disabilities through such tests as:
- ultrasounds
- fetal-blood sampling
- amniocentesis
- placental biopsy
1.1. The “severe injury” requirement
Children in California generally have to show that they suffered a severe injury for them to succeed with a wrongful life suit. Merely being born is not sufficient grounds to file suit.
Courts have found a severe injury in a case in which a child suffered from:
- hereditary deafness,
- Tay-Sachs disease,2
- congenital hydrocephalus and spina bifida,3 and
- autosomal dominant polycystic kidney disease, (a potentially fatal kidney problem).4
Other examples of severe injuries include:
- canavan disease
- cystic fibrosis
- down’s syndrome
- neurofibromatosis
- rubella
- sickle-cell anemia
Courts have not found a severe injury where a child suffered from:
- social stigmatization of being born out of wedlock,5 or
- the unrealized risk of being born with a mental disability.6
2. Who are the defendants in a wrongful life claim?
The defendants in a wrongful life action in California are typically the
- doctors,
- physicians, or
- healthcare providers whose malpractice caused a child to be born with life-altering difficulties.
A doctor’s employer, often a clinic or hospital, can also be held liable through vicarious liability if the malpractice happened on the job.7
As a matter of public policy, people who are outside the medical profession cannot be liable in a wrongful life lawsuit. These people or companies do not have a legal duty to keep children safe or healthy.8
The compensation available to a child in a wrongful life suit is limited to losses associated with the birth injury.
3. What compensation can a child recover?
If a child succeeds in bringing a wrongful life action in California, they are limited to receiving special damages. This includes money for past, present, and projected future costs of:
- medical bills, ongoing treatment, and prescription costs,
- specialized education and training,
- specialized non-medical care that the child will need, like wheelchairs and special education, and
- home modifications to accommodate the child’s disabilities and injuries.
Expert testimony by medical- and financial professionals may be necessary to calculate what future medical care will cost.
Damages in wrongful life cases do not include general damages such as non-economic costs like:
- medical expenses,
- lost earning capacity,
- emotional distress,
- pain and suffering, and
- loss of consortium.
4. What are wrongful birth cases?
A wrongful birth lawsuit is a separate cause of action from a wrongful life case in California.
In wrongful birth cases, a parent or parents have a legal claim against a healthcare provider or hospital because their child was born with serious medical issues.
In particular, the parents assert that the defendant medical providers or defendant institution either:
- misdiagnosed a condition of their unborn child, or
- provided negligent genetic testing or counseling about the probability of the fetus being born with birth defects.9
Due to the defendant’s negligence or alleged misdiagnosis, an infant is born with abnormalities requiring extensive medical care (which translates into significant medical expenses).
The parents in a wrongful birth claim also generally assert that, because of a provider’s negligence, they were not given the opportunity to make an informed decision about their child. In particular, if they had known of a defect, they would have either:
- avoided the wrongful pregnancy, or
- ended the pregnancy (usually after the second trimester and not the first trimester).
Example: Lisa is two months pregnant and visits an obstetrician for a routine checkup. The physician fails to diagnose Lisa with rubella.
With the birth of a child, Lisa’s baby is born with congenital rubella. This is a condition that can result in heart malformations and deafness.
Lisa can later bring a wrongful birth action against the obstetrician and allege that he/she negligently failed to diagnose rubella.
Note that a wrongful death lawsuit is different from both a wrongful birth and wrongful life lawsuit. In a wrongful death case, a deceased’s family members sue a person for damages when the decedent died as a result of that person’s negligence or recklessness.
Also note that unlike wrongful life cases, wrongful birth cases may be pursued where medical malpractice is believed to have occurred during sterilization or abortion procedures.10
Finally note that wrongful birth and wrongful life claims can be joined in the same lawsuit.
Legal References:
- California Civil Jury Instructions (“CACI”) 513. See also Turpin v. Sortini, 643 P.2d 954 (1982) (Hearing professionals and other healthcare providers can be held responsible for their failure to notify the parents about a genetic condition that, if known, would have led them to choose against having another child.). See also Curlander v. Bio-Science Laboratories, 106 Cal.App.3d 811 (1980). Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696.
- Turpin v. Sortini, supra.. Curlander v. Bio-Science Laboratories, supra.
- Gami v. Mullikin Medical Center, 18 Cal. App. 4th 870 (Cal. App. 1993) (“Claims for ‘wrongful life’ are essentially actions for malpractice based on negligent genetic counseling and testing”).
- 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).
- See, for example, Mary M. v. City of Los Angeles (1991) 814 P.2d 1341.
- See, for example, Elsheref v. Applied Materials, Inc. (2014) 223 Cal. App. 4th 451.
- As to genetic testing, typically parents file wrongful birth actions when they have a genetic condition or genetic disease that carry a high probability of having a disabled child. Their children then get born with genetic disorders and the parents claim that, during genetic counseling, their doctors failed to diagnose the disorders.
- CACI 511.