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Congenital Disasility, Medical Negligence & CONGENITAL DISASILITY, MEDICAL NEGLIGENCE & 'WRONGFUL LIFE' ACTIONS: THE LIMITS OF LIABILITY IN ANGLO-AlMERICAN TORT LAW Dany Merkel A thesis submitted in conformity with the requirements for the degree of Master of Laws Graduate Department of the Faculty of Law University of Toronto OCopyright by Dany Merkel 1999 National Library Bibiiotheque nationale du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques The author has granted a non- L'auteur a accorde une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sel reproduire, prêter, distriiuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in *fisthesis. Neither the droit d'auteur qui protège cette thèse. * thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. CONGENITAL DISABUITY, MEDICAL NEGLIGENCE & 'WRONGFUL LIFE' ACTIONS: TEE LIMITS OF LIABILITY IN ANGLO-AMERICAN TORT LAW Dany Merkel Master of Laws, 1999 Graduate Department, Faculty of Law University of Toronto This Thesis addresses the difficult legd and conceptual issues caised by the 'wrongful life' cause of action in Anglo-Amencan tort law. 'Wrongful iife' actions are brought on behalf of congenitally disabled children aileging medical negligence b y a defendant p hysician for failing to avail the child's parents of the opportunity to avoid the child's conception andl or birth. Because the child in such a case never had the chance to be born 'healthy' or 'whole', her cornplaint tends to be characterised by the Courts as a claim for negligently allowing her to be born, a daim for 'wrongful entry into life' or 'wron,@l life'. This Thesis argues that the 'wronghil life' label is emotive and distorts the mie nature of the underlying claim, which is arguably akin to a regular medical malpractice action for prenatai injury. A 'person affecting' conception of harm, which pady underlies and explains the judicial reluctance to allow 'wrongfbl life' actions, is considered in an effort to better understand the true Iimits of liability in Anglo-American tort law. I would iike to thank my supervisor, Professor Bernard Dickens, my second reader, Professor Bruce Chapman and my teacher and mentor during the year, Professor William Harvey, all of whom were generous with their time notwithstanding very busy schedules. CHAPTER 1: THE DEVELOPMENT OF THE CEILD'S RIGHT OF ACTION FOR NEGLIGENTLY INFLICTED PRENATAL INJURY ~.-n--*~~-.~*~n--~.~-nn-**n-~~-~*~.-~~Ht~n~~~n.m.mn*nn~11 1. I THEEARLY COMMON LAW & THE REQUIREMENTOFLIVE B IRTH: WALKER,D~ETRICH & AWRE. ..., 1 1 1 -2 DEEMINGLEGAL PERSONALITYAT THE TIMEOF THE WRONG:MOWREN, ~"RAMWA YS ., .,.. ,...., ,..,,,....,, 15 1.3 THE VIABILITYREQUIRCMEN~ IN AMERICA& A RIGHTTOBEGIN LIFE WïTH A SOUNDBODY & MWD: BONBRESTV. Kan .......,,,-...----..-----..-~-..-..-.-.. -.- .....................16 1 -4 THE UNBORNCHILD AS A FORESEEABLEPLA~: WATT V. RAMA,DUVAL V. SEGUIN& BURTONV. ~SUNGTONHA- ...-.,.,. .. ...,,., .--. .-.---. ..-.--.- --- .. .. ..... ... .. .. .. .. ... .- . - . ... .. - 1 8 15 THESTATUS OFME UNBORN CHILD & 'WRONGFULDEATH' BEFORE BIRTH .....................................22 1 -6 ANALYS IS OF THE FORESEEABLEPLAINTIF APPROACH ................................................... .-.--.-..--.-..---.24 1.7 CONTINUINGWRONGS & THE EXTENSIONOF LIABW TO PRE-CONCEPTIONTORTS: JORGENSEX RENS&OW&BERG~ESER .,,.......,.....-.. EEEEEE.E.EEEEE..EEE.EEEE...,. .........-...-..----......-......... ......................................... 27 1.8 THE'NO DUN' RULE & SUCCESSNEGENERATIONCLAMS: AUAU & THE 'DES GRANDDAUGHTER' CHAPTER 2: THE 'WRONGFUL LIFE' CAUSE OF ACTION BEFORE ANGLO-AMERICAN COURTS .-..*..*-.*..***.t.-..ou~~*n*~n---~~~-*-.uonu.~owu.**.**n.~.-~.n*.n-*o-~~-.~~.*--~-o-~~--*.--n-*42 CHAPTER 3: ANALYSE OF 'WRONGFUL Lm7ACTIONS: A WRONG WITHOUT A 3.1 JNTRODUCTION&OVERVIEW............................................................................................................... 76 3.2 THEDUTYQUESTION:ARIGHTNOTTOBEBORNORAP~A~~ER~GHTTO~VELIFE-CREAT~G DECIS~ONSMADE BY ONE'SPARENTS? ........................................................................................... 78 3.3 CAUSATION,OMISSIONS & INJURY: AN ANALOGY WlTH THE LACK OF INFORMED CONSEKTCASES A7 3.4 THEASSESSMENT OF DAMAGESIN 'WRONGFULLIFE' ACTIONS: THECOMPENSATORY PRINCIPLE OF TORTLAW (RESTITI/TIO IN INTEGRUM) & REMOTENESSOF DAMAGE...-......-,....O. OOO~.O...OOOOOOO---....-----.-.-.-----.-.--- 97 3 -5 LEGALLY COGNISABLEHARM & STATESWORSE THAN NON-EXISTENCE AN ANALOGY W THE (OTHER)END OF LIFE.................................. ... .......................................... 108 CHAPTER 4: ANALYSIS OF 'WRONGFUL LIFE' ACTIONS: A 'PERSON AF'FECTING7 CONCEPTION OF HARM & TAE LIMITS OF LIABILITY IN ANGLO-AMERICAN TORT LAW 121 4.1 'WRONGFULLIE' ACTIONS& A 'PERSON-AFFECTING'CONCEPTION OF HARM.......................... ..,. 1 2 1 4.2 THE PLIC CATIONS OF A 'PERSONAFFECTING* CONCEPTION OF WM:ARBITRARY DlSnNCTIONS & UNJUSTL~MITATIONS ...................................................... ................................. 135 4.3 CONGEN~~ALDISABILITY, MEDICALNEGLIGENCE & m~ LMITS OFLIABLTTY M ANGLO-AMERICAN TORTLAW: A JOB FOR THE LEGISLATURE?.-.....-. .-~...~...-.~--~--.-.---~-........ ...................... ..-. 143 What in the past was accepted as cruel destiny causing tragedy which was to be borne by the individual himself .,. is now seen as a situation whose creation, avoidance and compensation affect society. At that point it is not far-fetched to ask whether the existence of the defect might not place legal responsibility upon someone.' INTRODUCTION Until recently, medical science was unable to provide parents with the means of predicting the birth of a defective child. Now, however, the abiiïty to predict the occurrence and recurrence of defects attributable to genetic disorders has improved simcantly, Parents cm determine before conceiving a chiid whether their genetic traits increase the nsk of that child's suffering fiom a genetic disorder such as Tay-Sachs disease or cystic fibrosis. After conception, new diagnostic techniques such as amniocentesis and ultrasonography can reveal defects in the unborn foetus, .. Parerrts may avoid the birth of the defective child by aborting the foetus. The mcult moral choice is theirs.' The notion that the birth of a child afflicted with disability or disease could be a moral, let done a legai, harm to either the parents or the child concerned, is an anathema to a society that has its roots in a Judeo-Christian ethic of the sanctity of human lifeo3 Until recently, the birth of a child was considered variously by members of the judiciary to be a "blessing", a 'kause for celebration" and "not a matter for compensation"? Furthemore, society and the law have traditionally regarded congenital disability and disease as the product of cruel destiny or fate rather than something that could be prevented by human intervention? 1 Judge Barak in CA 5 18/82, Zeiizov et al- v- Katz et al, 40 PB, (2) 85 (Israeli Suprerne Court) (Translated into English by Dr. Zive Weil, 9 Med. & Law 865 at 885)[hereinafter Zeitzov, cited to Med- & Law]. 'ffarbeson v. Parke-Davis, (1 983) 98 Wash-2d 460,656 P.2d 483 at 491 [cited to P.2d]. E.g. See John Harris, 'The Wrong of Wrongful Life" ( 1990) 17 J.L. & Soc'y 90 at 9 1. 4 E-g. Sec Custodio v. Bauer (1 967) 25 1 Cal. App-îd 303,59 Cal. Rptr. 463 (opening the door to recovery for the birth of an unplanned hedthy child); Troppi v. Sca& (1971) 187 N.W. 24 5 1ï (Mich- CL App-)(dlowing parents to sue pharmacist who negligently filled a prescription for birth control pills with a tranquilliser for birth of 8' child). Doiron v. Orr (1978). 20 O.R. (2d) 7 1.86 DLR.(3d) 719 at 723 (Ont H.CJ.)(describing claim for child rearing expenses for the birth of a healthy child as "simply grotesque"). 5 See gcnenlly, "Disability and Disease" in Encyclopedia of Bioethics, rev, ed, Warren Thomas Reich ed., (New York: Macmillan) at 976ff. 'Congenital disability' refers to a condition that is existing frorn, and usually However, attitudes have changed dong with advances in science and medicine. As knowledge continues to grow as to the ongins and types of congenitai disease: for exarnple, as a result of the Human Genome ~rojectrnew ways to predict and detect, and less cornrnonly cure, such diseases are king found. A new service industry in genetic screening and counselling has sprung up over the last few decades that has enormous potential as a means of preventing the births of senously disabled child.ren8 As a result of these developments, Iegai clairns are king brought for the births of congenitdy disabled children where there is an allegation of negligence in genetic testing or advice- A 'wron,aful birth' action is an action brought by the parents of a congenitally disabied child who claim they have been depnved by the defendant's negligence of the opporninity to avoid the child 's conception or birth with such disabilities or disease. A 'wronghl life' action is an action brought on behalf of the congenitaUy disabled child him or herself, complaining that
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