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The Causes of “Wrongful Life” Suits: Ruminations on the Diffusion of Medical Technologies

Published online by Cambridge University Press:  27 April 2021

Barry R. Furrow
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Extract

New causes of action in tort law do not simply emerge, fully grown, like Athena from the head of Zeus. They develop as a result of a struggle between older case law on the one hand and the need to respond to an emerging problem on the other. This metamorphosis can be seen in many areas of jurisprudence, but most notably in the fields of products liability and medical malpractice litigation.

The explosion in products liability litigation, for example, is linked in part to the vastly increased proliferation of a variety of consumer goods and to new forms of marketing mechanisms for selling these goods, so that consumers are exposed to a wider range of risks. Medical malpractice litigation in the “wrongful life” area similarly reflects not only a change in social values toward abortion, but also changes in the perceived ability of medicine to detect and predict defects in the unborn fetus or the likelihood of such defects based upon the genetic history of the potential parents.

Type
Medical Malpractice
Information
Law, Medicine and Healthcare , Volume 10 , Issue 1 , February 1982 , pp. 11 - 47
Copyright
Copyright © American Society of Law, Medicine and Ethics 1982

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References

The increase in risks may be paralleled by a public perception of a right to redress, with an accompanying increase in litigation. For speculations along this line, see Lieberman, J., The Litigious Society (1981).Google Scholar
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This has been the major and growing category for wrongful life suits. For a representative sampling of cases see Bercker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978); Berman v. Allan, 404 A.2d 8 (N.J. 1979) (recognizing parents’ action); Giliner v. Thomas Jefferson Univ. Hosp., 451 F. Supp. 692 (E.D. Pa. 1978); Turpin v. Sorting 174 Cal. Rptr. 128 (Cal. App. 1981) (rejecting Curlender v. Bio-Science Laboratories, note 7 infra, as unsound under established principles of law and as a sortie into areas of public policy clearly within the competence of the legislature); Robak v. United States, 658 F.2d 471 (7th Cir. 1981).Google Scholar
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