84. What sort of action against the doctor should the attorney recommend?

A «wrongful life» action arises when a CHILD brings an action, claiming it would have been better to have never been born, and she is therefore entitled to damages for life. This may be because, for example, the child suffers from a severe congenital defect or disease which, had it been diagnosed during pregnancy, may have led the mother to abort the child. The impaired child herself is unlikely to have a successful wrongful life case. Only in a few states may a child recover anything, and it is usually limited to special damages attributable to the disability.

Conversely, many states do permit PARENTS to recover for «wrongful birth» (failure to diagnose a defect or diagnosis) or «wrongful pregnancy» (failure to perform a contraceptive procedure). Generally, the mother can recover damages for the medical expenses of labor as well as for pain and suffering. Where a child is disabled, the parents may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress too.

B is correct. This is the best course of action for the attorney to recommend because a «wrongful birth» action is permitted in many states for economic expenses related to an undiagnosed defect or disease. The parents sought an accurate assessment of their first child, which the doctor failed to provide. Unaware of the hereditary condition, the parents conceived a second child and incurred unexpected expenses that could have been avoided had the doctor acted properly. As such, the parents may be able to recover for the additional expenses related to the child's deafness.

A is incorrect. This is not the strongest avenue for relief because under a medical malpractice theory, had the doctor acted reasonably, the second child would have never been born because the parents claim they would not have conceived the second child. Most courts would be unwilling to say that being born deaf is worse than never being born at all. Under that approach, the second child would not be considered to have suffered an «injury» to recover from under a medical malpractice theory.

C is incorrect. A «wrongful life» action is rarely successful, if ever, and it is brought by the child, not the parents. Moreover, a wrongful life action by a child is based on the claim that had the parents known of the child's condition, the child herself would have never been born and therefore, she should be awarded damages for life. Only in rare circumstances do some states allow recovery, and they are usually limited to special damages related to the child's disability, not expenses for the entire period of the child's life.

D is incorrect. As explained above, most states reject a wrongful life claim, and of the few states that do permit it, some would limit recovery to the special damages attributable to the disability. The parents' wrongful birth action is more likely to be successful in almost all jurisdictions.