A child survived her birth for approximately two and one-half years; and during such period lived her short life in pain and suffering with and from polycystic kidneys and other diseases. Through the medium of the administrators of her estate (the parents), she makes claim in tort against the defendant doctors for conscious pain and suffering sustained by her after birth, contending that as a result of the defendants’ medical malpractice (where a birth injury or birth injury accident may result) she was conceived and born when she should not have been conceived or born. Such type of claim has in recent years received nomenclature in the field of torts as one for ‘wrongful life’ and/or the ‘right not to be born’.
Is the claim for “wrongful life” legally viable? Is there a legal right to make claim for pain and suffering resulting from a tort committed prior to conception and thus having been conceived and born?
Both defendants are licensed doctors, ‘specialists’ in the field of obstetrics; that the mother of the infant decedent had previous to the birth of the infant plaintiff given birth to a child in June 1969; that the prior child was born with polycystic kidneys and other conditions and died a short time after its birth; that defendant-one, was in charge of that delivery; that after the death of the prior child, defendants rendered medical care and advice to the mother between June 1969 and 31 July 1970; that based upon such advice the mother became pregnant, resulting in the birth of the presently involved infant, on 31 July 1970; that the defendant-two supervised and delivered said child; that this child, plaintiff now deceased, was also born suffering from polycystic kidneys from which she died two and one-half years later; that defendants were guilty of malpractice because of the negligent care, treatment and advice given to the mother which, they maintain, was not in accord with accepted medical standards in that the medical care and advice was improper by failing to inform the mother and father of the deceased infant of the risk of said infant’s being born with such congenital defects inherent in another pregnancy; that defendants represented to the mother that the condition of the prior (1969) deceased child did not indicate any reason for the mother not to become pregnant again and that there was no reason to fear that a future pregnancy would result in the birth of an unhealthy, congenitally defective child; that defendants did not inform them that polycystic kidney disease was hereditary in nature; that defendants failed to take tests to ascertain the chromosomal and/or genetic makeup of the mother and father so as to ascertain the possibilities and probabilities on a rational basis of any birth following that of their male child born in June 1969 who was afflicted with said congenital kidney disease, and in advising, informing and assuring the mother and father that any child conceived and born to them subsequent to the birth of the child in 1969 would not be similarly afflicted without any test data as a basis for such advice; and by giving the plaintiffs such reassurance without having made any research or investigation into relevant medical information then available concerning said condition and its congenital hereditary nature.