Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-24T01:29:26.408Z Has data issue: false hasContentIssue false
  • English
  • Français

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
Get access Rights & Permissions [Opens in a new window]

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

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

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
Zepeda v. Zepeda, 190 N.E.2d 849 (Ill. App. Ct. 1963), cert. denied, 379 U.S. 945 (1964) (the term “wrongful life” appears for first time); Williams v. State of New York, 223 N.E.2d 343 (N.Y. 1966)Google Scholar
Troppi v. Scarf, 187 N.W.2d 511 (Mich. 1971); Coleman v. Garrison, 281 A.2d 616 (Del. Super. 1971); Speck v. Feingold, 408 A.2d 496 (Pa. Super. 1979).Google Scholar
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
See Fraser, Introduction: The Development of Genetic Counseling, in Genetic Counseling: Facts, Values and Norms, Capron, A., eds. (1979).Google Scholar
Two excellent articles are: Capron, Tort Liability in Genetic Counseling, Columbia Law Review 79:618 (1978); and Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, Yale Law Journal 87:1488 (1978).Google Scholar
Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. App. 1980) [hereinafter cited as Curlender]Google Scholar
Id. at 486.Google Scholar
Id. at 487.Google Scholar
Id.Google Scholar
Id. at 488.Google Scholar
Id. (emphasis in original)Google Scholar
Schroeder v. Perkel, 432 A.2d 834 (N.J. 1981).Google Scholar
Id. at 838.Google Scholar
Id. at 839.Google Scholar
Id.Google Scholar
Id.Google Scholar
Handler, Justice, in his opinion concurring in part and dissenting in part, argued that the child should also be able to get damages since he shares the familial injuries and suffers harm beyond that of the parents. The child's additional harm is based upon a notion of diminished life—a form of suffering caused by the diminished capacity of the parents to deal with him, coupled with his existing physical ailment and its inherent limitations. He praised the majority opinion for coming half way toward this goal:Google ScholarGoogle ScholarGoogle Scholar
See Science 210 (4467) (October 17, 1980) (entire issue, devoted to developing medical technologies, provides a technical overview of trends in instrumentation).Google Scholar
Medical Liability Advisory Service 6:2 (1981).Google Scholar
IdGoogle Scholar
Pike v. Honsinger, 49 N.E. 760, 762 (N.Y. 1898).Google Scholar
Peterson v. Hunt. 84 P.2d 999 (Wash. 1938).Google Scholar
Clark v. United States, 402 F.2d 950, 953 (4th Cir. 1968) (blocked ureter, issue of intravenous pyelogram or cystoscopic examination as standard diagnostic procedure) quoting Smith v. Yohe. 194 A.2d 167, 173 (Pa. 1963).Google Scholar
Berman v. Allen. 404 A.2d 8 (N.J. 1979); Phillips v. United States. 508 F. Supp. 544 (D.S.C. 1981).Google Scholar
Capron, . supra note 6, at 671, suggests that a physician in this position argue that it is reasonable to decline to use measures that “as a statistical matter cause greater harm to all patients even though such measures would actually have been helpful (a fact not predictable by the defendant) in the particular case before the jury.”Google Scholar
See Toth v. Comm. Hosp. at Glen Cove. 239 N.E.2d 368. 373 (N.Y. 1968): “There is no policy reason why a physician, who knows or believes there are unnecessary dangers in the community practice, should not be required to take whatever precautionary measures he deems appropriate.” The institutional pressure, from hospital administrators, to adopt such technologies may also stem from fears of malpractice litigation and a perception that monitors provide a shield against liability.Google Scholar
Fineberg, , Gastric Freezing—A Study of Diffusion of a Medical Innovation, in Medical Technology and the Health Care System(National Academy of Sciences) (1979) at 173.Google Scholar
See Federal Rule of Evidence 803(18). The problem is that either the expert has to rely on the periodical, or else the judge must take judicial notice under Rule 201, and this requires a clearly reliable authority, a publication “recognized as a standard authority by the medical profession.” See Generella v. Weinberger, 388 F. Supp. 1086 (E.D. Pa. 1974) (statements from a learned medical publication, when independently used as evidence of truth therein asserted, are inadmissible as violative of hearsay rule); and Hemingway v. Ochsner Clinic, 608 F.2d 1040 (5th Cir. 1979) (medical malpractice suit, held that text written by two nurses was not shown robe reliable).Google Scholar
Furrow, B., Malpractice in Psychotherapy (1980) at 59.Google Scholar
See United States v. Simon. 425 F.2d 796, 805-06 (2d Cir. 1969) (the court held that professionals may be liable for acts a jury considers detrimental to the public interest whether or not professional organization guidelines have been adhered to. Compliance is persuasive, but not conclusive. The professionals in this case were accountants who sought to use their adherence to generally accepted accounting principles as a complete defense).Google Scholar
See Cur lender, supra note 7, at 2-3, and Price v. Neyland, 320 F.2d 674 (D.C. Cir. 1963). The rate of error in testing laboratories has been described as “massive.” See Culliton, B., Clinical Labs: Bills Aimed at Correcting “Massive” Problems, Science 192 (4239):531 (May 7. 1976).Google Scholar
Computed Tomographic Scanning (Institute of Medicine, National Academy of Science) (1977). The consensus on CT scanners is that they are now indispensable to radiologists; see Kolata, Consensus on CT Scans, Science 214:1327 (1981) (this report on a conference sponsored by the National Institutes of Health also notes that CT scans may be overused in a variety of situations).Google Scholar
Davis, , Some Limitations of Computed Tomography in the Diagnosis of Neurological Diseases. American Journal of Roentgenology 127:111 (July 1976) at 121.Google Scholar
Price v. Neyland, supra note 32.Google Scholar
Id. at 677.Google Scholar
Fineberg, , supra note 28, at 191.Google Scholar