When a child is born with a disability caused during childbirth through
medical malpractice, there is often an obvious case to be pursued. There are other categories
of medical malpractice that might not be so obvious: the claims of wrongful
life and wrongful birth.
Wrongful life claims: A claim brought by the disabled child (through a guardian), claiming
that the medical provider did something negligent to prevent termination
of the pregnancy, and thus failed to prevent his birth.
Wrongful birth claims: A claim brought by the parents of the child with the disability/disease
for negligently preventing the termination of the pregnancy.
During pregnancy, a multitude of tests are routinely performed to check
an unborn child for congenital or genetic diseases. If a medical provider
somehow interferes with the parents’ right to terminate the pregnancy,
and thus deliver a special needs child into the world, then the parents
and the child may have claims for medical malpractice.
The wrongdoing could be from an obstetrician failing to notify the parents
of the finding of a disease. It could be the radiologist failing to diagnose
the unborn child’s severe physical disability. It could be that
the blood lab failed to report an abnormal finding to the obstetrician.
If the parents would have terminated, but were precluded from making that
decision due to the medical provider’s negligence, they may have
a claim as the medical provider’s wrongdoing will lead to extraordinarily
high lifetime medical costs, high costs of special education and programming,
as well as cause the suffering of the child and the family.
Many courts reject claims of wrongful life for obvious public policy reasons,
but most states recognize parents’ wrongful life claims. Here in
Nevada, the parents’ claim of wrongful birth is recognized, but
the child’s claim of wrongful birth is not.
The Nevada Supreme Court made a ruling in 1995, setting the standard that
Nevada does not recognize the tort of wrongful life.
Greco v. United States, 893 P.2d 345 (1995). The case concerns a woman who received prenatal
care at a military hospital and who subsequently gave birth to a severely
handicapped child. She brought suit against the federal government alleging
that her physicians were negligent in failing to diagnose severe defects
in her unborn child and thus deprived her of the opportunity to terminate
the pregnancy that resulted in the birth of a severely handicapped child.
Regarding the issue, the Court wrote,
We decline to recognize any action by a child for defects claimed to have
been caused to the child by negligent diagnosis or treatment of the child's
mother. The Grecos' argument is conditional and narrowly put, so:
if this court does not allow Sundi Greco to recover damages for Joshua's
care past the age of majority, it should allow Joshua to recover those
damages by recognizing claims for ‘wrongful life.’ Implicit
in this argument is the assumption that the child would be better off
had he never been born. These kinds of judgments are very difficult, if
not impossible, to make. Indeed, most courts considering the question
have denied this cause of action for precisely this reason. Recognizing
this kind of claim on behalf of the child would require us to weigh the
harms suffered by virtue of the child's having been born with severe
handicaps against "the utter void of nonexistence"; this is
a calculation the courts are incapable of performing.
Gleitman v. Cosgrove, 227 A.2d 689, 692 (N.J. 1967). The New York Court of Appeals framed the
problem this way: ‘Whether it is better never to have been born
at all than to have been born with even gross deficiencies is a mystery
more properly to be left to the philosophers and the theologians. Surely
the law can assert no competence to resolve the issue, particularly in
view of the very nearly uniform high value which the law and mankind has
placed on human life, rather than its absence.’
Becker v. Schwartz, 386 N.E.2d 807, 812 (N.Y. 1978). We conclude that Nevada does not recognize
a claim by a child for harms the child claims to have suffered by virtue
of having been born.
Greco v. United States, 893 P.2d 345, 347-348 (1995)
The Court in
Greco affirmed the parents’ right to recover for extraordinary medical
expenses, custodial expenses, and emotional distress. The Court noted
that a parent cannot recover for loss of companionship because the alternative
to having a disabled child in this scenario is having no child at all.