Birth Related Torts

1. Birth Related Torts Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University Law Center Baton Rouge, LA 70803-1000 richards@lsu.edu http://biotech.law.lsu.edu

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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.

9. 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.

10. 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