Quote:
Originally Posted by Kevin
It kind of does leave the Plaintiff in a position of having to find a really damaging smoking gun though and it would appear that for the most part, "oops" would be a pretty good defense for a doc who missed something or chose to miss something.
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Quite possibly. But that's different from saying it allows the doctor to "legally lie," which is what DS (and a number of articles I found) said. That "oops" factor is going to be there regardless of whether this act becomes law or not.
Perhaps I hadn't had enough caffiene when I responded earlier, but I guess I'm just not seeing this as being as far-reaching as some are making it sound. And frankly, I don't think is a clear-cut issue at all -- there are some serious ethical and jurisprudential considerations to work through, especially with wrongful life claims.
Some things need to be clarified. The article says "If the bill becomes law, Arizona would join nine states barring both 'wrongful life'' and 'wrongful birth' lawsuits." That's a bit misleading. So far as I know, only a handful of state courts (most notably California) have allowed "wrongful life" suits to go forward. By contrast, many courts have refused to recognize "wrongful life" as a legally cognizable claim. The reality is that recognizing "wrongful life" as a valid legal claim is, I think, very, very much the minority view.
As for wrongful birth, last I knew only about half the states recognize wrongful birth claims, and as far I know no court has allowed damages to go past actual economic damages. The other half either have refused (judicially) to recognize it and/or have statutes barring it, or haven't considered the question yet.
So the eight states the article seems to refer to would be eight states that have statutes barring both wrongful birth and wrongful life lawsuits. But there are many more states where the courts have refused to recognize such claims.
In addition, the article says "Those are lawsuits that can arise if physicians don't inform pregnant women of prenatal problems that could lead to the decision to have an abortion." I'm not aware of any court that has ever held that parents can recover damages based on a claim that if the doctor had not been negligent and had explained things to them fully, they would have terminated the pregnancy. I've done a little bit of looking this morning and I haven't found any such cases. Courts don't like to say it would have been better had the child not been born.
In those jurisdictions where wrongful birth claims have been recognized, what courts have allowed is damages resulting from a physician's negligence for expenses related to the pregnancy, childbirth and care of the child. And that raises a basic legal question: If what people are talking about with this bill is genetic problems, deformities or the like, and if the issue is the physician's failure to fully inform the parents so that they could make informed decisions, then there is a basic legal problem of causation. The physician's negligence didn't cause the genetic problem or deformity, so the physician can't be held legally responsible for the medical condition(s) at issue. (This, I think, is the "blame" factor that the Arizona senator was talking about.) So that leads to a question of what actual damages were actually caused by the physician's negligence rather than by the medical condition(s).
Like I said, this is a thornier issue, at least from a legal perspective, than the article would lead readers to believe.
Hybrid Mode
