Pawan's Blog: Sep 6, 2010

As a Maryland medical malpractice attorney, I am occasionally asked what the difference is among the type of medical malpractice cases that are called wrongful birth and wrongful life cases. These type of cases generally fall into three categories.

The first, sometimes labeled “wrongful conception” or “wrongful pregnancy,” are brought by parents of a normal but unplanned child seeking damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device.

The second, sometimes denoted as “wrongful birth,” consists of cases in which parents of a child born with birth defects allege that the negligence of prenatal health care providers or genetic counselors deprived them of the ability to abort the pregnancy because of the likelihood that the child would be born in an injured or impaired state. Those actions are by the parents to recover the damages and expenses accruing to them from having to endure and raise such a child.

The third category, sometimes called “wrongful life,” comprises cases actions brought by, or on behalf of, the child. At least two types of claims fall within this category - claims by normal but unwanted children who seek damages either from their parents or from others negligently responsible for their conception or birth, and on the other hand, claims by impaired children asserting that, as a result of the defendant's negligence, their parents were precluded from making a decision to abort the pregnancy.

In Maryland, courts do not allow wrongful life cases but do allow wrongful birth cases. The leading Maryland appellate court decision prohibiting wrongful life cases, Kassama v. Magat, 368 Md. 113, 792 A.2d 1102 (2002), stated: “We align ourselves with the majority view and hold that, for purposes of tort law, an impaired life is not worse than non-life, and, for that reason, life is not, and cannot be, an injury…. In our view, the crucial question, a value judgment about life itself, is too deeply immersed in each person's own individual philosophy or theology to be subject to a reasoned and consistent community response, in the form of a jury verdict. Allowing a recovery of extraordinary life expenses on some theory of fairness-that the doctor or his or her insurance company should pay not because the doctor caused the injury or impairment but because the child was born-ignores this fundamental issue and strikes us as simply a hard, sympathetic case making bad law.”

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Monday, September 6, 2010

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