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Originally Posted by HQWest
Wrongful life has been used to try to recover expenses for a child born with severe defects that needs lifelong care.
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That's the case for "wrongful life" and "wrongful birth" both. The difference is that in wrongful birth, it is the parents who are seeking to recover the damages on the theory that, but for the physician's negligence, they would not have incurred or could have mitigated in some way those expenses, while in "wrongful life," it is the child who is claiming essentially that but for the physician's negligence, he or she would not have been born and therefore would have avoided suffering -- that being born is in and of itself an injury.
Like I said, as it is the number of jurisdictions that currently recognize wrongful life claims can pretty much be counted on one hand, so statutorily barring those claims in Arizona is not a huge shift in the
status quo.
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What really concerns me about this law is that it appears to say that physicians do not need to tell the parents about the possibilities of one of these problems if they think that it would lead to the parents wishing to abort the pregnancy. Where it becomes fuzzy is if the law is intended to protect the doctor from being sued if he does not mention one of these problems or is not firm enough with how serious a situation is or if it is meant to encourage doctors to not mention specific things in an effort to reduce elective abortions.
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I really don't get that at all from the bill.
This is the entire text of the bill (the all caps are in the original):
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 6, article 12, Arizona Revised Statutes, is amended by adding section 12-718, to read:
12-718. Civil liability; wrongful birth, life or conception claims; application
A. A PERSON IS NOT LIABLE FOR DAMAGES IN ANY CIVIL ACTION FOR WRONGFUL BIRTH BASED ON A CLAIM THAT, BUT FOR AN ACT OR OMISSION OF THE DEFENDANT, A CHILD OR CHILDREN WOULD NOT OR SHOULD NOT HAVE BEEN BORN.
B. A PERSON IS NOT LIABLE FOR DAMAGES IN ANY CIVIL ACTION FOR WRONGFUL LIFE BASED ON A CLAIM THAT, BUT FOR AN ACT OR OMISSION OF THE DEFENDANT, THE PERSON BRINGING THE ACTION WOULD NOT OR SHOULD NOT HAVE BEEN BORN.
C. THIS SECTION APPLIES TO ANY CLAIM REGARDLESS OF WHETHER THE CHILD IS BORN HEALTHY OR WITH A BIRTH DEFECT OR OTHER ADVERSE MEDICAL CONDITION.
D. THIS SECTION DOES NOT APPLY TO ANY CIVIL ACTION FOR DAMAGES FOR AN INTENTIONAL OR GROSSLY NEGLIGENT ACT OR OMISSION, INCLUDING AN ACT OR OMISSION THAT VIOLATES A CRIMINAL LAW.
Section A deals with "wrongful birth," and it seems to specifically prohibit claims based on the contention that absent the negligence, the child in question would not or should not have been born. That is not the same as claiming that absent the negligence, the parents would not have incurred the expenses they did, which can also fall under the term "wrongful birth." Like I said earlier, I'm not aware of any court that has allowed a claim based on the contention that the child should not have been born, so if that is the extent of this section of the proposed law (as it seems to be), then it's not really plowing any new ground at all.
Section B deals with "wrongful life," and again as I said, courts in only a few states have allowed such claims. (And I don't think Arizona is one of those states. Its neighbor, California, is.) Again, no new ground here.
Section D makes clear that civil actions can still be brought for intentional acts or for gross negligence. This leaves the door open for malpractice claims. (Ordinary negligence is basically failing to do what a reasonable person [doctor] would do under similar circumstances. Gross negligence is a conscious disregard of one's duty to another that is likely to result in foreseable injury.) A physician who makes the decision not to provide parents with relevant information because he or she is concerned that the parents might elect to terminate the pregnancy would, at least in my view, be acting intentionally or be guilty of gross negligence. If that's the case, this proposed law wouldn't bar claims against the doctor.