Wrongful Birth Cases: The Filters of Scope of Duty and of Normative Causation.

Wrongful birth cases were initially brought most often for failed contraception, sterilisation or termination of pregnancy. Claims have since arisen from alleged failures in the provision of pre-conception and antenatal advice leading to a loss of opportunity to commence or terminate a pregnancy, or for failures in assisted reproduction. Within that second category, breach of duty leading to the birth of a child with disabilities has not always been enough for the claimant parent/s to recover compensation or at least for all of the child's disabilities. Two key cases show the courts' focus on scope of duty issues - Waller v James and Khan v Meadows. Arguably the same outcomes could have been arrived at by consideration of normative causation. This article examines the two cases, but emphasises the fact-sensitive nature of those judgments in which scope of duty and normative causation filters may or may not apply.

Obstetrics and gynaecology and the law.

Litigation over medical mishaps - NHS Resolution - extent of damages and costs - the relationship between doctor and midwife - celebrated or notorious cases, Mid Staffs, Morecambe Bay, Northwick Park - informing patient of risks - meaning of wrongful birth - contemporary tests for negligence.

The legal implications of prenatal diagnosis in Malaysia.

Background: Prenatal diagnosis enables detection of any disease or disability of the fetus during the pregnancy of a woman. Parents whose fetus is found to have a serious disorder from antenatal testing may terminate the pregnancy if it is permitted by the law or continue with the pregnancy to term. However, the chance of terminating a pregnancy may be denied if there is prenatal negligence by the medical practitioner in terms of diagnosis or failure to advise on the test results correctly. The purpose of this research is to examine the possible legal implications of prenatal diagnosis in Malaysia. Methods: This study adopts doctrinal legal research in which the researcher examines statutes and decided cases in Malaysia, the United Kingdom (UK) and Singapore relating to abortion, wrongful birth and wrongful life claims, in order to determine the legal implications of prenatal diagnosis in Malaysia. Results: In Malaysia, abortion following a prenatal diagnosis is only legally possible if the statutory criteria in the Penal Code are met. Abortion is illegal if it is not done for therapeutic purposes. A wrongful birth action brought by a woman who claims to be deprived of the opportunity to terminate her pregnancy may be successful in Malaysia, if it can be proven that a legal abortion could have been performed if not because of the prenatal negligence of the medical practitioner. However, a wrongful life action brought in the child's name for being allowed to be born with a disability may not be viable since the claim could hardly be established and it is against the public policy. Conclusions: Theoretically, it is possible to bring a wrongful birth action resulted from negligence in prenatal diagnosis successfully in Malaysia, but the chance is relatively slim for wrongful life action.

Non-Invasive Prenatal Screening: Navigating the Relevant Legal Norms.

The implementation of non-invasive prenatal screening (NIPS) in Canada will be affected by legal norms. The law can shape physician behaviour, help to crystallize standards of care, influence utilization patterns, and reflect and reinforce patient expectations. In Canada, failure to inform a patient about NIPS, or misinterpretation of NIPS results, could result in a successful "wrongful birth" claim if the patient subsequently gives birth to a child with a condition that had been detectable. Given that research shows that physicians' decisions are influenced by concerns about liability, malpractice law seems likely to encourage increased recommendation and use of NIPS. Physicians' fiduciary and negligence-based disclosure standards require they consider both objective factors as well as a specific patient's subjective and reasonable beliefs, fears, desires, and expectations. Thus, physicians likely must address dominant public discourses and controversies relevant to NIPS. Given the existence of spin, hype, and misinformation about NIPS, there is an increasing need for a robust consent process and, when appropriate, genetic counselling. In sum, the law will define and bound the acceptable behaviour of physicians recommending or administering NIPS, and nudge the technology's implementation forward. Physicians and policymakers should be aware of the potential impact of these legal norms on both utilization and public expectations.

Can there be wrongful life at the end of life? German courts revisit an old problem in a new context.

This article discusses a recent ruling by the German Federal Court concerning medical professional liability due to potentially unlawful clinically assisted nutrition and hydration (CANH) at the end of life. This case raises important ethical and legal questions regarding a third person's right to judge the value of another person's life and the concept of 'wrongful life'. In our brief report, we discuss the concepts of the 'value of life' and wrongful life, which were evoked by the court, and how these concepts apply to the present case. We examine whether and to what extent value-of-life judgements can be avoided in medical decision-making. The wrongful-life concept is crucial to the understanding of this case. It deals with the question whether life, even when suffering is involved, could ever be worse than death. The effects of this ruling on medical and legal practice in Germany are to be seen. It seems likely that it will discourage claims for compensation following life-sustaining treatment (LST). However, it is unclear to what extent physicians' decisions will be affected, especially those concerning withdrawal of CANH. We conclude that there is a risk that LST may come to be seen as the 'safe' option for the physician, and hence, as always appropriate.

Cross-Country Comparative Analysis of Legislation and Court Rulings in Wrongful Birth Actions.

Negligent conduct by health care providers can result in medical malpractice injury sustained by parents denied their right to decide whether and when to have children. In this review of the international medicolegal literature, the authors present a comparative analysis of the law of medical negligence in this context and a discussion of the grounds for compensable injury resulting from medical error. The discussion is focused on the legal provisions for compensable injury awarded to the plaintiff (expectant mother, parents of the born child, and born child) and the types of injury various legal systems recognize in such cases. The aim of this article is to provide medical malpractice investigators and legal professionals with an overview of the birth cases.

El problema de la responsabilidad por falsos positivos en el diagnóstico genético preimplantacional / The problem of liability for false positives in preimplantation genetic diagnosis

El incremento de la práctica de diagnósticos genéticos preimplantacionales, en el contexto de las técnicas de reproducción asistida, genera nuevos ámbitos potenciales de responsabilidad. El riesgo de comportamientos negligentes en la práctica de este diagnóstico puede concretarse en cualquier momento y generar, consiguientemente, el planteamiento de una reclamación de indemnización por parte de los sujetos afectados por los daños derivados de ello. Este trabajo se centra en analizar la respuesta jurídica que ha de darse a estas reclamaciones cuando se fundamenten en un error en el diagnóstico por falso positivo

The increase in the practice of preimplantation genetic diagnosis, in the context of assisted reproductive technology, generates new potential areas of liability. Any moment can crystallize the risk of negligent behavior in the practice of this diagnosis and it can therefore generate a claim brought by the subjects who suffer the damages derived from it. This paper focuses on analyzing the legal response to be given to these claims when they are based on an error in the diagnosis by false positive

Acciones de wrongful conception en Chile: una propuesta de fundamentación / Wrongful conception claims in Chile: a proposal for their justification / Ações de wrongful conception no Chile: uma proposta de fundamentação

Resumen: En el presente artículo, los autores tratan el tópico de admisibilidad en Chile de las acciones de responsabilidad civil de wrongful conception o anticoncepciones fallidas. Utilizando referencias hacia la práctica en el derecho comparado y al derecho internacional de los derechos humanos, los autores argumentan a favor de fundamentar su reparación en el derecho a la autodeterminación reproductiva de las mujeres.

Abstract: In this article, the authors refer to the wrongful conception claims, particularly the controversy of their admission in Chile. On the basis of comparative and human rights international law, the authors argue in favor of the women's right to reproductive self-determination as the foundation of their compensation.

Resumo: Neste artigo, os autores abordam o tema da admissibilidade no Chile das ações de responsabilidade civil de wrongful conception ou anticoncepções fracassadas. Com base em referências para a prática no direito comparado e no direito internacional dos direitos humanos, os autores argumentam a favor de fundamente sua reparação o direito à autodeterminação reprodutiva das mulheres.

"Wrongful Birth" Claims and the Paradox of Parenting a Child with a Disability.

"Wrongful birth" is a controversial medical malpractice claim raised by the mother of a child born with a disability against a medical professional whose failure to provide adequate prenatal information denied her the chance to abort. Plaintiff-mothers are required to testify that, but for the defendant's negligence, they would have terminated their pregnancy. Accordingly, alongside pro-life activists, disability rights advocates have opposed "wrongful birth" claims for stigmatizing and discriminating against people with disabilities by framing their very existence as a harm. Despite plaintiff-mothers' need for caretaking resources, scholars have recommended solutions ranging from the wholesale elimination of the wrongful birth claim to the curtailment of damages. To the extent scholars and the media have acknowledged mothers in the wrongful birth discourse at all, often it has been to blame and shame them for allegedly rejecting their children. They have paid little attention to the ways wrongful birth jurisprudence forces mothers to disavow their children in court, and thereby to forfeit the "good mother" ideal, in exchange for the possibility of securing necessary resources for their children. Commentators who question plaintiff-mothers' maternal devotion exacerbate the psychological toll the law already imposes. This Article shifts the blame from mothers to the legal system. While wrongful birth proceedings portray mothers' feelings about their children as categorically negative, real life accounts and social science findings reveal the true paradoxical experiences of all mothers, including plaintiff-mothers raising children with disabilities. To acknowledge this complex reality and mitigate the emotional strain of bringing a wrongful birth claim, this Article proposes several legal reforms: (1) broadening the analysis of emotional distress to reflect and legitimize mothers' paradoxical feelings about their children; (2) reframing the harm to mothers as loss of reproductive choice rather than as the birth of a flawed child and, accordingly, expanding available economic damages to include plaintiff-mothers' unexpected childcare responsibilities; and (3) educating plaintiffs' attorneys to empathize with the emotional aspects of mothers' litigation experiences and to counsel mothers accordingly. Today's approach to "wrongful birth" claims, which both stigmatizes disability and strains caretakers, demands urgent reform.

Sobre la dignidad humana del mortinato y nasciturus. Un nuevo reto bioético a propósito de la STC 11/2016 y la jurisprudencia del TEDH / On the human dignity of a stillborn and unborn child. A new bioethical challenge before the Spanish Supreme Court Case Law 11/2016 and the ECHR Jurisprudence

En febrero de 2016, de forma inédita se falló un asunto concerniente a la bioética y el respeto por los derechos fundamentales de la persona concerniente a la prohibición de dar sepultura digna a un mortinato al que el derecho le negó su existencia por no superar unos límites desnaturalizados. Sin esgrimir una norma verdaderamente habilitante, sin cobertura legal y sin justificar la existencia de un riesgo real para la población o en beneficio del interés general, la administración pública española denegó el ejercicio de los derechos fundamentales a la libertad ideológica, de culto y a la intimidad personal y familiar. Afortunadamente, en esta ocasión el más alto interprete constitucional priorizó la dignidad humana a la codificación siguiendo escrupulosamente la moderna jurisprudencia del Tribunal Europeo de Derechos Humanos

In February 2016, Spanish justice decided - without precedent - on an issue concerning bioethics and the respect for the fundamental rights of the individual, in reference to the prohibition of giving decent burial to a stillborn, whom the law denies its existence for not reaching the established unnatural limits. Without wielding a truly enabling standard, without legal cover and without justifying the existence of a real risk to the population or the benefit of a general interest, the public Spanish administration denied the exercise of fundamental rights based on ideological freedom, of worship and personal and family privacy. Fortunately, in this case, the Spanish Constitutional Court gave priority to the human dignity instead of the codification following the latest European Court of Human Rights case law

Are Wrongful Life Actions Threatening the Value of Human Life?

Most courts around the world have been refusing wrongful life actions. The main argument invoked is that the supposed compensable injury cannot be classified as such, since life is always a blessing no matter how hard and painful it is.In opposition to mainstream scholars and the dominant case law, this article sustains that life must be distinguished from living conditions, the former being the real injury at stake, since some living conditions are so intolerable that in themselves they justify a compensation within wrongful life actions.

Preimplantation and prenatal diagnosis, wrongful birth and wrongful life: a global view of bioethical and legal controversies.

BACKGROUND: Prenatal diagnosis based on different technologies is increasingly used in developed countries and has become a common strategy in obstetric practice. The tests are crucial in enabling mothers to make informed decisions about the possibility of terminating pregnancy. They have generated numerous bioethical and legal controversies in the field of 'wrongful life' claims (action brought by or on behalf of a child against the mother or other people, claiming that he or she has to endure a not-worth-living existence) and 'wrongful birth' claims (action brought by the mother or parents against the physician for being burdened with an unwanted, often disabled child, which could have been avoided). OBJECTIVE AND RATIONALE: The possibility which exists nowadays to intervene actively by programming and deciding the phases linked to procreation and birth has raised several questions worldwide. The mother's right to self-determination could be an end but whether or not this right is absolute is debatable. Freedom could, with time, act as a barrier that obstructs intrusion into other people's lives and their personal choices. Therapeutic choices may be manageable in a liberal sense, and the sanctity of life can be inflected in a secular sense. These sensitive issues and the various points of view to be considered have motivated this review. SEARCH METHODS: Literature searches were conducted on relevant demographic, social science and medical science databases (SocINDEX, Econlit, PopLine, Medline, Embase and Current Contents) and via other sources. Searches focused on subjects related to bioethical and legal controversies in the field of preimplantation and prenatal diagnosis, wrongful birth and wrongful life. A review of the international state of law was carried out, focusing attention on the peculiar issue of wrongful life and investigating the different jurisdictional solutions of wrongful life claims in a comparative survey. OUTCOMES: Courts around the world are generally reluctant to acknowledge wrongful life claims due to their ethical and legal implications, such as existence as an injury, the right not to be born, the nature of the harm suffered and non-existence as an alternative to a disabled life. Most countries have rejected such actions while at the same time approving those for wrongful birth. Some countries, such as France with a law passed in March 2002, have definitively excluded Wrongful Life action. Only in the Netherlands and in three states of the USA (California, Washington and New Jersey) Wrongful Life actions are allowed. In other countries, such as Belgium, legislation is unclear because, despite a first decision of the Court allowing Wrongful Life action, the case is still in progress. There is a complete lack of case law regarding wrongful conception, wrongful birth and wrongful life in a few countries, such as Estonia. WIDER IMPLICATIONS: The themes of 'wrongful birth' and 'wrongful life' are charged with perplexing ethical dilemmas and raise delicate legal questions. These have met, in various countries and on certain occasions, with different solutions and have triggered ethical and juridical debate. The damage case scenarios result from a lack of information or diagnosis prior to the birth, which deprives the mother of the chance to terminate the pregnancy.

Trends in medical malpractice claims in patients with cleft or craniofacial abnormalities in the United States.

OBJECTIVE: To describe medical malpractice trends in patients with cleft and/or craniofacial abnormalities. METHODS AND MATERIALS: A modified Delphi approach was used to gather search terms. Search settings included "all jury verdicts and settlements", with jurisdiction of "all states" and "all federal courts" (by court and circuit). A retrospective review of WestLawNext legal database was conducted. Cases were excluded if they did not have a direct association from the patient's craniofacial anomaly or if they were not related to malpractice. RESULTS: Forty-two cases met inclusion criteria. Cases closed between 1981 and 2014 were included. The mean payment among claims with an indemnity payment was $3.9 million. Of cases brought to trial, 62% were in favor of the plaintiff. Amongst physicians named as co-defendants, pediatricians were most commonly named (24%), followed by plastic surgeons (16%), obstetricians (7.8%), and radiologists (7.8%). "Missed diagnosis" was the most common type of negligent claim (45%), followed by "surgical error" (21%), and "medication error" (17%). "Anoxic brain injury" resulted in the highest median indemnity payment for complication of patient management ($3.5 million), followed by "wrongful birth" ($1.03 million), and "minor physical injury" ($520,000). No specific type of negligent claim (p = 0.764) nor complication of patient management (p = 0.61) was associated with a greater indemnity payment. Mean indemnity payment was $920,000 prior to 2001 and $4.4 million after 2001 (p = 0.058). CONCLUSIONS: Mean indemnity payments were fourteen-fold greater in patients as compared to those in the overall population ($3.9 million versus $274,887) and seven-fold greater than those in the average pediatric population ($3.9 million versus $520,923). All healthcare providers should be aware of the associated medical malpractice claims that may be incurred when treating patients at risk for these conditions.

Ethical aspects of creating human-nonhuman chimeras capable of human gamete production and human pregnancy.

In this paper I explore some of the moral issues that could emerge from the creation of human-nonhuman chimeras (HNH-chimeras) capable of human gamete production and human pregnancy. First I explore whether there is a cogent argument against the creation of HNH-chimeras that could produce human gametes. I conclude that so far there is none, and that in fact there is at least one good moral reason for producing such types of creatures. Afterwards I explore some of the moral problems that could emerge from the fact that a HNH-chimera could become pregnant with a human conceptus. I focus on two sets of problems: problems that would arise by virtue of the fact that a human is gestated by a nonhuman creature, and problems that would emerge from the fact that such pregnancies could affect the health of the HNH-chimera.