Insane 'wrongful life' case. (1 Viewer)

[Not-That-Bright]

'Wrongful life' lawsuit gives birth to a moral and legal dilemma


Doctors are being immunised against mistakes, writes David Hirsch.

Last week's 2-1 decision of the NSW Court of Appeal to reject the medical negligence claim of two severely disabled children is a backwards step in the fight for the rights of the disabled.

The two children, Alexia Harriton and Keeden Waller, will never be able to work and will need 24-hour care for the rest of their lives. They would not be in this situation were it not for the negligence of doctors - which has been admitted for the purposes of the legal argument.

But if it were not for the doctors' negligence the children would not "be" at all. And that is the problem.

In each case the doctors failed to diagnose conditions which, had the parents been told, would have resulted in a decision to terminate the pregnancy or not to conceive at all. In Alexia's case it was the failure to diagnose rubella early in her mother's pregnancy. In Keeden's case, his parents were genetically incompatible and he was affected by a foreseeable genetic defect.

At first blush these situations should not create difficult legal problems. The parents hire the doctors for advice because they are concerned not to have a child with severe disabilities. The advice is wrong and the children are born with severe disabilities. The doctors' negligence caused the very outcome they were hired to avoid. Why should the children not be entitled to compensation?
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In the Court of Appeal, Justice Keith Mason said the children should have a right to sue. Justices Jim Spigelman and David Ipp said they should not.

The majority said that what the disabled children were complaining about was "being born at all". This is because the only way of avoiding the disabilities was to avoid life altogether. It was their opinion that the law should not accept that "life" is a "damage" that can be sued for.

Mason said the claim was not about "being born" but about "life with disabilities" and the needs that were created by this condition.

These "wrongful life" claims have bedevilled courts all over the world. Historically, most courts have rejected them. But in recent years some courts in Europe, the US and elsewhere have accepted them. Mason supports that movement towards recognition of the rights of these disabled children.

A major reason Mason rejected the notion that "life" cannot be the subject of a legal claim is that it already is.

Last year the High Court determined that when a child is born following a negligent sterilisation procedure, parents can sue for losses arising from the birth - including in some cases the cost of raising the child until it is old enough to leave home. If the law recognises a claim by parents for the inconvenience and expense of a child born as a result of negligence, why would it not recognise a claim for a severely disabled child who has to live with the consequences of the very disability the doctor's skill was engaged to avoid?

In the "wrongful life" case the doctors argued in their defence that the claim offended principles of the "sanctity of life" They also insisted that their negligence did not cause the children's disabilities - nature did. Finally, they said that the children could not prove that they suffered any "damage" unless they could answer Shakespeare's conundrum of whether it is better "to be or not to be".

But when these admittedly engaging arguments about ethics, metaphysics and poetry are put to one side, one is left with the disturbing feeling that the Court of Appeal's decision is just another step towards immunising the medical profession against the consequences of its own mistakes.

Ipp, who advised the Commonwealth on how to reform tort law in the wake of the "insurance crisis", asked why judges should be extending the law of negligence when legislatures are restricting the right to sue.

Mason countered this by saying that just because governments, pressured by interest groups like the medical profession and the insurance industry, might restrict common law rights, this was no reason; in the absence of legislation preventing claims like these, judges had to "pause or go into reverse" in their job to do justice in a particular case. In saying this, Mason affirmed that the common law can and should respond, in a principled and humane way, to the challenges presented by modern medicine. His willingness to uphold the common law against the tide of politically motivated "tort reform" suggests that there is still some life in judge-made law. And there is nothing wrongful about that.

The practical effect of the Court of Appeal's decision to reject these "wrongful life" claims will mean that doctors will be able to shift the consequences of their negligence onto the taxpayer.

The High Court may get an opportunity to decide on whose side - that of the disabled child or the negligent doctor - justice lies.

David Hirsch is a partner at Maurice Blackburn Cashman Lawyers, who were the solicitors for Alexia Harriton.

http://www.smh.com.au/articles/2004/05/02/1083436478926.html?from=storyrhs&oneclick=true

This is simply insane....

 

[spell check]

HAHAHAH the guy writing it was a solicitor for one of the parties to the case

 

[White Rabbit]

The parents should have a right to sue. If they were hired to determine if their children would be born with serious genetic defects, then essentially, a contract is made - the doctors did not hold up their end of the contract by failing to inform the parents of resonably foreseeable complications. If this was general surgery, they'd be up shit creek as the doctor (or nurse) MUST inform patients of any reasonably foreseeable complications - a Gyney/Obestrics doc would be able to tell that rubella in mum has a very high chance of resulting in birth defects - and if he failed to diangnois the patient, then thats negligence anyway. The second case is a joke - if parents are incompatible, they should have been informed straight away.

While I accept that most doctors in the public system are overworked and under alot of stress, and are still just humans, these are basic basic mistakes that should not occur. And while I know many wonderful and talented doctors, I know just as many who really simply think they are god, and have the right to give out and withhold information as they please, that their decsions are ones they will make for the patient without their consent and so on.

Essentially, the doctors should be liable. You should look at the Womens Hospital in Perth - only hospital in WA with high dependency maternity and birthing units able to deal with complications (as well as the only one with a NICU) some absoluley horrible stories have emerged from that place due to negligence and the specialist playing God. (or even worse, leaving highly complicated deliveries to be looked after by the Intern)

 

[malkin86]

There might be a parallel with the Schiavo case... How does their quality of life sound to youse? If you were in their shoes, what would you do? As I recall, most BoSers during the Schiavo case were calling for the plug to be pulled, and to give her some dignity in death. If this case is successful, then is/could euthanasia be part of the settlement?

 

[Xayma]

Depends on your view of death. If they are upset over being granted life (in that they want others to pay for a life which was the only possibility for them) I personally see no reason why they shouldn't be given euthanasia. Once it is performed it is the same (in my view from their perspective) as never being granted life at all.

 

[Not-That-Bright]

This is really the first step towards eugenics, and I think it's entirely disgusting.

 

[malkin86]

They *want* to die - it doesn't seem that their lives stand a chance of improving at all. Living their lives in a world that doesn't fit them at all, needing 24/7 care in order to even function. Do we have any more information about how their conditions disable them?

High Court to hear wrongful life case

The full bench of the High Court will begin hearing a landmark test case
involving a disabled woman who unsuccessfully sued her mother's doctor for
wrongful life.

Alexia Harriton, now 24, was born deaf, blind and mentally disabled.

She claims her mother's doctor negligently failed to diagnose rubella
infection early in the pregnancy and wrongly reassured her that her baby
would not be affected.

Ms Harriton unsuccessfully tried to sue her mother's doctor, Paul Stephens,
in the NSW Supreme Court three years ago for negligence.

But in April this year she won the right to take her test case to the High
Court, with the hearing set down for Thursday morning.

One of Ms Harriton's lawyers, Kathryn Booth, said the case raised complex
legal and philosophical issues which had never been considered by
Australia's highest court.

Ms Booth said she would seek leave to have damages awarded to her client,
including her costs for medical treatment, special care and housing.

http://seven.com.au/news/topstories/120028

 

[Xayma]

The main thoughts I have about this is the contrast between the parents and the child. The parents will be put out (possibly unable to afford) the child, an should be compensated by the doctors where negligence is shown. The child on the other hand is suing is because they were born, the doctors didn't ruin their quality of life anymore so then a failure to terminate me ruined my quality of life. If they want to live then I see that as a choice that they are glad they do live, if they do not, well euthanasia isn't legal, but as badly as this will make me sound, methods are available. If the doctors negligence gave them this poor life, eg there was something that couldve been done to prevent damage to the unborn then I could understand financial compensation.

The issue now comes with, what if the parent is no longer around to sue, if the parent was to be the carer (often for life) then the compensation would cover that, if the parent is not around why should the disabled without parents be worse off then those with parents.

 

[MoonlightSonata]

I doubt it will succeed. There is a significant line of authority (with which I staunchly agree), particularly international authority - which I am sure Justice Kirby will sink his teeth into, rejecting wrongful life claims.

Counsel for the respondents, Mr Gageler SC, states (from the transcript of the still ongoing appeal):

The problems at root both stem from, if not the impossibility, then at least the invidiousness of a court treating non-existence as a comparator. That difficulty is one that arises qualitatively in determining whether or not there is loss or injury equals damage and it is one that arises quantitatively in attempting to determine whether there are damages that can be assessed and awarded by a court.

I think Mr Gageler must be quite an imposing and forward barrister -- a few of the justices get a little narky with his assertiveness from time to time heh

 

[Riewe]

What i don't get is that if they didn't want to be born, then why would they want to sue? Wouldn't they rather be 'put down' so to say?

As they said "This is because the only way of avoiding the disabilities was to avoid life altogether" so it is either one or the other. They are aborted or live with their disabilities.

 

[+Po1ntDeXt3r+]

hmmm the kid is 24.. hence born 1981..
with congential rubella syndrome

90% of babies affected in the first 11 weeks will get medical problems..

but the article with this data was published in 1982 in the Lancet
- Miller E, Cradock-Watson JE, Pollock TM. Consequences of confirmed maternal rubella at successive stages of pregnancy. Lancet 1982;2:781-94.

mabbe he reassured her cos he didnt know well enough?..

but i guess the issue is duty of care to the baby..

 

[Frigid]

The parents should have a right to sue. If they were hired to determine if their children would be born with serious genetic defects, then essentially, a contract is made - the doctors did not hold up their end of the contract by failing to inform the parents of resonably foreseeable complications.

actually, you'll find the case, Cattanach v Melchior, by majority (4:3), holds that the parent can sue the doctor ('wrongful birth' causing pure economic loss). it is only the child who cannot sue ('wrong life' claim).

GUMMOW J: There is a whole body of equity law about children in ventre sa mere, surely.

MR WALKER: And one finds...

GUMMOW J: Common lawyers seem to have spectacles with a range of about three feet.

LOL

 

[malkin86]

What i don't get is that if they didn't want to be born, then why would they want to sue? Wouldn't they rather be 'put down' so to say?

As they said "This is because the only way of avoiding the disabilities was to avoid life altogether" so it is either one or the other. They are aborted or live with their disabilities.

But if they took matters into their own hands, or if they just went for euthenasia, then the doctor isn't punished at all, and he can go on practicing, and perhaps go on making these kinds of mistakes...

 

[Frigid]

then the doctor isn't punished at all

while i concede there is a deterrent policy reasoning behind the law of torts, i strongly disagree that torts is about punishment. euthanasia is illegal in this country. Interestingly, the Cattanach case no longer fully applies in this state by virtue of s71 of the Civil Liability Act:

Limitation of the award of damages for the birth of a child

(1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:

(a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or

(b) any loss of earnings by the claimant while the claimant rears or maintains the child.

(2) Subsection (1)(a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

 

[malkin86]

So, in plain speaking, you can't sue for money to look after a child that was born due to the doctor being wrong, except in the case of a child with a disability or multiple disabilities, where you can sue for the cost of stuff associated with the disablities. Yes? I just like to be sure that I understand these things, that's all.

Maybe 'punish' was not the best word... If these two were to take matters into their own hands and commit suicide quietly, or pursue euthenasia where it is legal, there isn't a recognition, either by the doctor or wider society, that the doctor stuffed up, and so he could have gone on and kept on practicing, with only a vague sense of his responsibility (perhaps culpability?) in the matter. He is not deterred in the slightest, and could concievably make, or have made, the same mistake again.

 

[White Rabbit]

Essentially, the doctors should be accountable for their negligence in regards to the mums health, or the parents biological compatibility, and according to Frigid, can be brough to answer for their actions.

 

[ManlyChief]

while i concede there is a deterrent policy reasoning behind the law of torts, i strongly disagree that torts is about punishment. euthanasia is illegal in this country. Interestingly, the Cattanach case no longer fully applies in this state by virtue of s71 of the Civil Liability Act:

I was under the impression that one of the arguements by the 'victims' counsel on the first day of the hearing was that the act did not apply in the prestent case ... i may be wrong on that one, i was chatting to some random american tourists on the ferry at the same time.

Jeez louise, the case is a humdingy of a pickle isn't it? I mean, the failure to diagnose did have horrid results for all concerned. I do not envy the lady and gentlemen on the bench at all

 

[katie_tully]

Quick...where are the anti abortionists!!!

Wow, this will really set a precedent won't it. Really in relation to compensation, they should be entitled to compensation to cover the costs of raising the children. (the parents).
The doctors should be held accountable to some degree, because they neglected to detect disabilities that are obviously routine...It's not as though they' encountered some form of genetic disability that cannot be picked up on.

Anywho, long story short...I think this was an excellent decision. I'm not a heartless bitch, but honestly if their quality of life is that shit, no amount of money is going to make it better.

 

[ManlyChief]

Anywho, long story short...I think this was an excellent decision. I'm not a heartless bitch, but honestly if their quality of life is that shit, no amount of money is going to make it better.

I didn't think arguement in the appeal had yet concluded ... Am I living in my own imaginary universe? ...

 

[katie_tully]

You possibly are.

Allow me to reiterate then.

If the decision goes ahead, I agree with it whole heartedly.