5.50F WRONGFUL BIRTH AND LIFE
This case involves a claim that the defendant is liable for the wrongful birth or life of the plaintiff’s child. The plaintiff contends that the defendant failed to tell her that by continuing her pregnancy she ran the risk of a particular condition, and that had she known of the risk, she would have terminated the pregnancy. A woman has the right to decide for herself whether to continue or terminate her pregnancy. The claim here is that the plaintiff was deprived of the right to make the personal decision of whether to give birth to a child who might have birth defects. In this case the doctor had a duty to explain, in words the patient could understand, all material information and risks necessary for the plaintiff to have made an informed decision concerning whether or not to continue the pregnancy. A doctor is required to obtain enough information about a patient’s background and her reasons for seeing the doctor to determine what information is material to the patient and to discuss that information with her. Medical information is “material” when a reasonable woman, in what the physician knows or should know to be the patient’s position, could attach significance to a risk of a birth defect in deciding whether to terminate the pregnancy or give birth to the child.
The plaintiff does not have to prove that any doctor’s negligence caused her child’s birth defect. The question is whether the doctor’s failure to disclose the risk of a birth defect deprived the plaintiff(s) of [her or their] right to decide whether to give birth to a child who could possibly have a birth defect. If you conclude that the plaintiff would have had an abortion, if warned of the risk of a birth defect, the plaintiff is entitled to damages consisting of both:
- the special medical expenses and other extraordinary expenses attributable to raising a child with a birth defect over the child’s lifetime; and
- the emotional injury and anguish that the plaintiffs have suffered and will suffer in the future caused by losing the option to terminate the pregnancy and being compelled to take on the lifetime tasks and burdens of raising a disabled child.
