Birth Related Torts

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Birth Related Torts

• Edward P. Richards
• Director, Program in Law, Science, and Public
  Health
• Harvey A. Peltier Professor of Law
• Louisiana State University Law Center
• Baton Rouge, LA 70803-1000
• richards_at_lsu.edu
• http//biotech.law.lsu.edu

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Negligent Injury to the Fetus

• These are ordinary medical (or other) injuries
  that harm the child before birth
• Exposure to tetratogens
• Thalidomide
• Accutane
• Diseases
• Measles
• Syphilis
• HIV

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Who Brings Negligent Injury to the Fetus Claims?

• Parents
• Damages related to the medical and other costs
  due to the disability
• Some emotional damages, but not for the birth of
  the child
• Child
• The child can bring a claim for his or her own
  injuries and long term disability

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Wrongful birth

• Damage claim brought by the parents
• Costs related to pregnancy and the birth
• Lost of consortium and related damages
• Can include special costs of raising a child with
  disabilities that are caused by the physician's
  negligence

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What types of Negligence Support Wrongful Birth?

• Physically preventing the birth
• Negligently performed sterilization
• Negligence in prescribing birth control
• Counseling about conception
• Negligent genetic counseling
• Negligent counseling about other risks

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Public Policy Issues in Wrongful Birth

• Public policy is that a child, even an unwanted
  child, has intrinsic value
• No state allows damages for the usual costs of
  rearing a child
• No state allows emotional damages for the birth
  of an unwanted child
• Damages for a healthy child are limited to the
  cost of the pregnancy

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Wrongful Life

• This is a claim by the child
• The basis of the claim is that the child has been
  injured by being born
• The public policy is that existence is preferable
  to non-existence
• The courts discuss the impossibility of assigning
  damages to life itself
• This is separate from damages for injuries caused
  by negligence
• Classic case is a child born with birth defects
  after a failed sterilization where the physician
  had nothing to do with the birth defect - like
  Pitre

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Prescription in Fetal Injury Cases Bailey v.
Khoury, 891 So.2d 1268 (La. 2005)

• (Injury due to defendant's negligence)
• Defense claim
• defendants argue that an unborn child who is
  later born alive is considered a natural person
  from the time of its conception, and that
  prescription runs against an unborn child prior
  to its birth
• defendants argue that Louisiana law contains
  absolutely no support for Ms. Bailey's argument
  that an unborn child should be treated
  differently from other natural persons for
  purposes of prescription.

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Claim on Behalf of the Child

• Louisiana law specifically provides that the
  "legal fiction" of natural personality that
  attaches to an unborn child from the moment of
  conception pursuant to La. Civ. Code art. 26
  applies only when such application is for the
  benefit of the child or for the preservation of
  its interests
• Thus, we hold that Ms. Bailey's claim filed on
  behalf of Jada accrued on March 20, 1997, the
  date Jada was born, and that prescription on that
  claim therefore commenced on that date.

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Claim on Behalf of the Mother

• Does the claim run from when she found out about
  the birth defects, or from when the baby was
  born?
• Can there be different prescription dates for the
  same tort?
• We find that the defendants failed to carry their
  burden of proving that any damages suffered by
  Ms. Bailey prior to Jada's birth manifested
  themselves with sufficient certainty to support
  accrual of a cause of action.
• The court implies that there can be more than one
  prescription date, but not in this case