Wednesday, April 26, 2017

Wrongful Birth Suits: What's In a Name?

by Sherry F. Colb

In my Verdict column for this week, I discuss the legislation currently pending in Texas to abolish the cause of action for wrongful birth.  A wrongful birth suit is one in which the plaintiff claims that had the defendant done what he was supposed to do (e.g., a doctor notifying a pregnant patient that her fetus shows signs of severe abnormalities), the plaintiff would have terminated her pregnancy and the child would accordingly never have been born.  The plaintiff, if successful, can recover expenses occasioned by the birth of the child whom she would not have had in the absence of the defendant's wrongful conduct (or wrongful omissions).  In my column I discuss the implications of wrongful birth suits, both for issues surrounding abortion and for the symbolic meaning of such suits for people living in the world today who suffer from severe disabilities (of the sort for which the plaintiffs in such suits would have terminated their pregnancies).

In this post, I want to focus on the names that we give the lawsuits at issue, "wrongful birth" or "wrongful life" suits.

The implicit (and not all that implicit) suggestion in the names is that the birth or the life of the person in question should never have come into being and is wrongful in some way. The names suggest, in other words, that some people who currently inhabit our world are invalid or unwanted and should never have joined us here on this earth.  To some extent, this suggestion is unavoidable with such suits, because the plaintiffs are claiming that the wrongdoing of the defendant or defendants led to a birth or life that should never have happened.  That is the essence of the suit, and the damages are for the costs associated with the child's existence, costs that would not have been incurred had there been a disclosure followed by an abortion.

Yet we could use a different and less insulting name to refer to such lawsuits.  We could, for example, consider these suits as a species of medical malpractice.  As a physician exercising due care, a doctor would be required to tell her patient about any potential conditions that she discovers or should have discovered upon examining her, whether those conditions afflict the patient or the patient's growing embryo or fetus.  The doctor would then have to provide a patient with information about treatment options and prognosis.

Having alerted her patient, the doctor will have met her obligation.  Failing to disclose, however, would result in liability for the cost of the disability for the patient or parents, if the cost could have been avoided with the information that the doctor failed to disclose.  This could mean that curative steps might have been taken to avoid the disability or it could mean that the pregnancy could have been terminated.  In this way, a name like "wrongful life" or "wrongful birth" would not be highlighting or emphasizing the idea that the child should not have been born.  The problem, on this approach, is that the doctor failed to disclose, not (or not only) that the child was born.  Abortion, then, would be only one of the various potential ways in which the patients wrongfully denied information might have reacted had they learned what they were entitled to learn.

One might respond to this proposal that we should call things what they are and that the reason that parents might be able to collect a huge amount of money in response to this particular kind of malpractice suit is the fact that the child--and not his disability alone--could have been prevented.  Be that as it may, the names we use matter and convey our attitude towards the children resulting from pregnancies that perhaps would have been terminated if doctors had done what they were supposed to do.  Calling the misconduct "malpractice" rather than having a special name signifying the wrongfulness of a child's life or birth could go a long way in avoiding a toxic and unnecessary message about innocent people who, now that they are here, deserve our compassion and respect.


Joe said...

I appreciate the discussion here on the message sent by usage of certain terms.

On some level, "wrongful birth" seems okay. It is after all a birth that went wrong, it is a "wrongful" birth. This need not mean that the birth itself was wrong. It can mean that the birth had something wrong involved in it.

But, the term has possible implications and it's something to be concerned about.

el roam said...

Thanks for the post , in fact , such issues , are global . In time , the treatment or attitude towards disables , is improving ( see the for example the UN Convention on the Rights of Persons with Disabilities , 30 March 2007 ) But, the terminology stays the same not once . There are states in fact, where specific legislation is enacted, in order just to replace, one terminology or name or nickname with more attenuating one (suppose, not : moron or retarded person, but, disable indeed for example).

In that particular case , the original meaning wasn't the description of the life of such person born so , but : describing and emphasizing the :

tort , the malpractice , not his life per se . The original meaning is :

That what was involved ( not constitutive but involved ) in that birth , was a tort or wrongdoing . Yet , this is the original meaning , and may be perceived wrongfully . In order for it , to be semantically right , the terminology had to be so , that the adjective had to be eliminated :

In English as we know , the adjective , precedes the noun ( " big table " for example ) So , the adjective , colors the noun , or simply describes it . Yet , if the adjective would have been eliminated , it would emphasize rather the wrongdoing or malpractice of the doctor , over the " life " or " birth " , and So :

" Birth tort " , or : " tort in delivering " in such cases , one could , by avoiding the adjective ( " wrongful " , preceding the name ) colors it more accurately , as the author of the post would wish .

However , in US it is bit different one may argue :

Suppose you are republican , and " pro life " , well nothing would be wrong then , at first place . While , if you are a democrat and " pro abortion " , you wouldn't presume, that a woman, could reach such advanced phase of pregnancy, while life itself, could be considered as wrongful, or undesirable.

Interesting , and very characteristic ….


Shag from Brookline said...

Describing a democrat as "pro abortion" rather than as "pro choice" can be misleading.

el roam said...

There is an old saying shag , that : " Even a blind chicken , can finally pick a grain … " finally indeed , after endless fishing expeditions , you are right ( at least to some extent ) . So , I take back that terminology presented so by me …..

Shag from Brookline said...

Perhaps describing a republican as "pro-life" rather than as "anti-abortion and anti-contraception" can also be misleading.

Joe said...

"can be misleading" can be misleading

Greg said...

I think Prof. Colb is absolutely correct in pointing out that "the reason that parents might be able to collect a huge amount of money in response to this particular kind of malpractice suit is the fact that the child--and not his disability alone--could have been prevented." This is what makes these suits unique.

If termination of the pregnancy is considered an option, then the cost of the wrong done to the patient is potentially quite large. If termination of the pregnancy is NOT considered an option, then the wrong may be more of an administrative wrong, since there was really nothing that the family could have done about the disability anyway. For this reason, there really is something making this unique among medical malpractice suits.

I find myself agreeing with both Joe and el roam. "Wrongful birth" seems okay, while "wrongful life" certainly doesn't. Changing the name to something like "tort in delivery" or even perhaps "prenatal failure to disclose" would be okay, but of course that doesn't have the catchy phrasing that "wrongful birth" does.

Ultimately, removing a cause of action here is about giving cover to doctors who want to intentionally lie to their patients in order to restrict those patients' ability to choose to terminate the complicated pregnancy. It's an attempt to allow doctors to enforce their morals on abortion, at the expense of their patients' ability to follow theirs. This has nothing to do with what the suits are called.

el roam said...

Greg , read again my comment , distinguishing , between adjective and noun ( so " wrongful " is to be eliminated , emphasizing by that the wrongdoing or malpractice over the " birth" or " life " ) .

Concerning your last point ( doctors who want to intentionally lie to their patients ) I strongly recommend that verdict , you may find great interest in that amazing case ( first amendment and abortion ) :


Greg said...

@el_roam: I meant to say that I found both viewpoints reasonable (Joe in support of "wrongful birth", yours in support of "tort in delivery.") I did not mean to imply that you both said the same thing, nor did I mean to misattribute views that are not yours. I apologize if I was unclear.

The case you cite spends a great deal of time comparing the regulation to traditional informed consent. Requiring the disclosure of major medical conditions in the fetus is far closer to traditional informed consent (consent to childbirth) than to the disclosure of normal anatomical features required prior to an abortion decision in the Stuart case. That said, the circuits are split on the abortion regulation topic, as it is near the line of how much compelled speech is allowed in professional regulation.

Shag from Brookline said...

I don't always read the poster's column for which a link is provided. Greg's 2:05 PM comment, and in particular his closing paragraph, compelled me to read Prof. Colb's column, which in my view was well done. As to the question of "What's in a Name?" Greg's closing sentence is on target. But in that closing paragraph Greg references: " ... doctors who want to intentionally lie to their patients in order to restrict those patients' ability to choose to terminate the complicated pregnancy." That would of course be awful. But the doctor may be negligent - plain medical malpractice - and not intentionally lying and not averse to abortion. If TX were to eliminate this cause of action, whatever it is called or how it is described, perhaps the State of TX should assist in bearing some of the expenses of raising the child. The proposed TX statute would seem to apply not only to plain medical malpractice but also intentionally lying, which seems to reveal animus on the part of the TX legislature.

As to "What's in a name?", Shakespeare may not be helpful.