Hastings Law Journal Volume 42 | Issue 2 Article 3 1-1991 The Rightful Position in Wrongful Life Actions Michael B. Kelly Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Michael B. Kelly, The Rightful Position in Wrongful Life Actions, 42 Hastings L.J. 505 (1991). Available at: https://repository.uchastings.edu/hastings_law_journal/vol42/iss2/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Rightful Position in "Wrongful Life" Actions by ICHAEL B. KELLY* Legal remedies generally seek to put the plaintiff in her rightful position:' the position she would have occupied but for the misconduct that provided her a right to recover. 2 A court that attempts to return a plaintiff to her rightful position in a personal injury case must rely on money damages, an imprecise remedial tool that at best can ap- proximate the rightful position. In fact, the assertion that a court can put a plaintiff in the position she would have occupied often seems completely fictional. 3 But careful attention to the rightful position pro- vides a court with an ideal against which it can assess the appropri- ateness of requested remedies. * Associate Professor of Law, University of San Diego School of Law. B.G.S. 1975, Umversity of Michigan; M.A. 1980, Umversity of Illinois at Chicago; J.D. 1983, University of Michigan. I owe a special debt of gratitude to Stephen Marsh, who enticed me into starting this project and played a key role in the early years. Christopher Wonnell, Ed Ursin, Kristine Strachan, Rodney Smith, Emily Sherwin, Virginia Nolan, Grant Moms, Stan Krauss, Paul Horton, Gail Henot, Donald Dripps, Lynne Dallas, Joe Colombo, Kevin Cole, David Cham- bers, Harriet Baber, and Larry Alexander all deserve thanks for their patient efforts to point me in the right direction and keep me from straying too far afield on the way. Finally, I appreciate the help of Dinyar Mehta, Patrick Flynn, Deryk Doty, Haven Courtenay, and Amar Babu, who devoted their time to all the things that I could not bring myself to do. 1. "Rightful position" is a phrase coined by Douglas Laycock as shorthand for "the position the plaintiff would have been in but for the wrong." D. LAYCOCK, MODERN AERaICAN REmEDIES: CASES AND MATERIALS 15 (1985). 2. 4 F HARPER, F JAm s & 0. GRAY, THE LAW OF TORTS § 25.1, at 494 (2d ed. 1986); REsTATEmENT (SECOND) OF CoNTRAcTS § 347 comment a (1981) (damages are intended to put a plaintiff "in as good a position as he would have been in had the contract been performed'.); RESTATEMENT (SECOND) OF TORTS § 901 comment a (1979) ("the law of torts attempts primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort"). 3. 4 F HARPER, F JAms & 0. GRAY, supra note 2, § 25.1, at 493. A quadriplegic tort victim who receives a substantial monetary judgment is not in the same position she would have been in but for the tort. For example, the money will not allow her to play tenis. Theoretically, the award should be large enough to make the victim indifferent if she were asked to choose between no injury and the injury plus the money judgment, which would allow her to discover and participate in other activities that provide as much enjoyment as tennis (and all other lost opportunities). See R. POSNER, ECONo C ANALYSis oF LAw § 12.5, at 182 (3d ed. 1986). At least for serious injuries, our tort system only poorly approximates the "indifference curve." Id., RESTATEmENT (SECOND) OF TORTS, § 903 comment a (1979). [505] THE HASTINGS LAW JOURNAL [Vol. 42 In genetic counselling torts, 4 the rightful position standard pres- ents courts with an enigma. Plaintiffs must claim that, but for the tort, a child suffering from severe genetic defects would not have been born.5 Thus, the parents' rightful position is childless; 6 the child's rightful position is lifeless, unborn. Courts stumble when considering whether the plaintiffs' unen- viable rightful position is better than their current situation. After in- 4. Genetic counselling torts are actions for medical malpractice. They differ from other malpractice claims only in the nature of the injury alleged: the birth of a child suffering from severe genetic defects. Genetic counselling torts popularly are referred to as "wrongful birth" and "wrongful life" actions. "Wrongful birth" denotes a claim by parents that a genetic counsellor, usually a physician or medical laboratory, provided misleading information con- cerning the risk that the parents would conceive or had conceived a child that would suffer from severe genetic defects. The inadequate counselling precluded the parents from exercising the right to make certain procreative choices, such as to prevent conception or to terminate a pregnancy, thus causing the birth of a severely impaired child. "Wrongful life" refers to a similar claim by the impaired child, who alleges that the same inadequate counselling caused her to be born with the defects. The title of this Article notwithstanding, I have attempted to avoid the popular names of these torts. Alexander Morgan Capron, University Professor of Law and Medicine at the University of Southern California and a leading scholar in the area of liability for negligent genetic counselling, pointed out more than a decade ago that these names obscure the central wrong in these cases: the deprivation of the parents' right to make procreative choices, considering the best interests of the family as a whole, including the potential child, who most directly suffers the effects. Capron, Tort Liability in Genetic Counselling, 79 COLum. L. Rav. 618, 634 n.62, 652-53 (1979). This Article does not address claims by parents of healthy children who are born after negligently performed sterilizations, negligently filled prescriptions for contraceptives, or negligently performed abortions. 5. Genetic counsellors do not actually cause the child's genetic defects. The parents contribute genetic material containing the defects. The genetic counsellor's tortious conduct is failing to detect the problem and warn the parents of the risk. This failure does not prevent a cure because the defects involved in these cases are, by definition, incurable. The parents have only two choices: prevent the birth or give birth to a severely impaired child. The genetic counsellor's negligence deprives the parents of information critical to that choice. In a wrongful birth action, the parents contend that, but for the genetic counsellor's negligence, the child would not have been born. Curable conditions pose no analytical problem. Since detection would induce treatment that presumably would cure the condition, the child's rightful position is as a healthy baby. The failure to diagnose a curable genetic defect does not differ from the failure to diagnose any curable condition. See, e.g., Turpin v. Sortini, 31 Cal. 3d 220, 231 n.8, 643 P.2d 954, 961 n.8, 182 Cal. Rptr. 337, 344 n.8 (1982). Special rules governing tortious injuries to the unborn may impede recovery. See, e.g., Collins, An Overview and Analysis: Prenatal Torts, Precon- ception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth: Time for a New Framework, 22 J. FAm. L. 677 (1984); Robertson, Toward Rational Boundaries for Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries, and Wrongful Life, 1978 Dulce L.J. 1401. The enigma noted in text, however, poses no obstacle to recovery. 6. More accurately, parents assert that they would not have had this child at this time. If they already have other children, they of course would not be childless. In order to simplify discussion, this Article frequently assumes that the parents have no other children. The assumption generally does not affect the analysis of the remedies. But see infra notes 319-325 and accompanying text (discussing claims by siblings that they were injured by the birth of a genetically impaired child). January 1991] WRONGFUL LIFE itially struggling with claims by parents, 7 courts now seem willing to recognize that in some cases childlessness may be preferable to the joys of parenthood. 8 Many states that allow the parents to recover limit the remedy by excluding emotional distress9 and normal childrearing expenses. 10 Only three states have recognized a child's genetic counselling claim." These states limit recovery to extraordinary medical expenses and exclude any recovery for pain and suffering or normal living ex- 2 penses.' Judicial reluctance to embrace the child's claim often seems un- justified. The child can allege the ordinary requirements for negligence 7. See Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Stewart v. Long Island College Hosp., 35 A.D.2d 531, 313 N.Y.S.2d 502 (1970). 8. See, e.g., Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988) (en banc); Moores v. Lucas, 405 So. 2d 1022 (Fla. Dist. Ct. App. 1981); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Proffitt v. Bartolo, 162 Mich. App. 35, 412 N.W.2d 232 (1987), appeal denied, 430 Mich. 860 (1988); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). 9. See, e.g., Siemieniec v. Lutheran Gen. Hosp., 117 Ill. 2d 230, 261-62, 512 N.E.2d 691, 707 (1987) (parents were not in the zone of danger); Becker v. Schwartz, 46 N.Y.2d 401, 413-14, 386 N.E.2d 807, 813, 413 N.Y.S.2d 895, 901-02 (1978) (policy grounds).