Birth Related Torts

Edward P. RichardsDirector, Program in Law, Science, and Public Health

Harvey A. Peltier Professor of LawLouisiana State University Law Center

Baton Rouge, LA 70803-1000richards@lsu.edu

http://biotech.law.lsu.edu

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

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

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

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

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

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

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.

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.

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