South Carolina Supreme Court shoots down wrongful life claim

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted Feb. 14, 2005.

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Patients can successfully hold their physicians responsible for many things when it comes to medical liability, but there's one area where the courts have been extremely reluctant to let patients go: A claim for wrongful life.

A recent South Carolina Supreme Court decision followed the lead of other state supreme courts in not letting a child go forward with a wrongful life lawsuit.

The court said there was no cause of action for a now 8-year-old boy born without the cerebral hemispheres of his brain. He sued a physician alleging the doctor should have been able to see the problem in an ultrasound so his mother would have had a choice to terminate the pregnancy.

The legal question is a strange one for courts to handle, prompting judges to ask the tough, deep, life questions usually left to philosophers and theologians. In a nutshell: What is the value of life?

In a wrongful life lawsuit, a child claims that he or she would have never been born if it weren't for the negligence of a physician or other health professional.

The negligence may come in the form of a failure to do genetic counseling. For example, the child claims that his or her parents would have opted not to conceive if they knew there was a risk the baby would end up with a birth defect.

Or, the child may claim a physician was negligent because the doctor missed something on an ultrasound or other prenatal test results that would have shown the fetus would be born with birth defects. And, the child says that if his or her mother knew the results, they would have ended the pregnancy.

Essentially, the child is saying it would have been better if he or she had never been born.

So, how can a man or woman who does not know what it is like to not exist make a decision of whether it would have been better to never have been born? And if a court did recognize a claim for wrongful life, who would be able to sue? Would someone who has a hearing impairment have a right to a wrongful life lawsuit if he or she said his or her mother would have ended the pregnancy if the condition were known?

In the end, most courts, including the South Carolina Supreme Court, have said that those questions are best left up to academics, not juries. Courts in 19 states have said there is no claim for wrongful life.

The South Carolina Supreme Court became the 20th, and it turned to a biblical reference when explaining its decision.

"Our civil justice system places inestimable faith in the ability of jurors to reach a fair and just result under the law, but even a jury collectively imbued with the wisdom of Solomon would be unable to weigh the fact of being born with a defective condition against the fact of not being born at all," the South Carolina Supreme Court said in its December 2004 opinion Willis v. Wu. "It's simply beyond human experience."

Not a typical medical liability lawsuit

In a typical medical liability lawsuit, a physician's action or inaction caused the harm.

For example, consider the hypothetical case of an obstetrician prescribing for a pregnant woman a drug that by the standard of care the physician should have known caused birth defects. If the child is born with an impairment, the child would have a traditional medical liability claim.

But the South Carolina Supreme Court and others have said that a wrongful life lawsuit differs from that because the physician's action didn't actually cause the impairment or defective condition with which the child was born.

"Instead, the impairment or defective condition occurred and the health care provider failed to predict or diagnose it, resulting in the birth of a child with a congenital defect," the South Carolina Supreme Court said.

So the question isn't what damages the jury would award to someone who has to live a life with a disability. Instead, the court says, the question becomes what damages should the jury award for what it would have been like to not have been born.

"A wrongful life action does not present an ordinary tort case and it is difficult, if not impossible to apply a traditional duty-breach-causation-damages analysis to it," the court said. "We acknowledge, as many courts have done, [that] formidable theological and philosophical issues surround such an action."

The South Carolina case

In Willis v. Wu, Thomas Willis' mother, on his behalf, alleged that Donald S. Wu, MD, didn't perform timely ultrasound examinations or didn't comprehend the significance of the ultrasounds. Consequently, Willis' mother didn't know there was an indication of hydrocephalus at a point when terminating the pregnancy would have been an option, according to court records.

Willis was born with maximal hydrocephalus, a condition in which the parts of the brain that control thinking, motor control, the ability to speak and the ability move voluntarily are missing.

At birth, a CT scan showed that Willis' head was filled with fluid. There was brain tissue in the frontal and temporal lobes and a brain stem. Physicians placed a shunt in the boy's head at birth to drain the fluid and prevent it from growing larger, court records show.

Willis receives therapy at home and school, but he won't be able to take care of himself independently. His physical and mental ability are about the same as they were when he was a few months old, according to court records.

South Carolina Supreme Court justices said they recognize the "extremely severe nature" of the boy's impairment. But that they still could not justify allowing a wrongful life lawsuit to go forward.

It comes back to trying to answer the question of whether it would have been better not to be born at all and trying to attach a monetary value to that answer. "Here the doctor didn't cause the birth defect, and to put a value on it, you would have to look at the value of life," said Stephen Brown, the attorney who represented Dr. Wu.

"Courts don't want to be in a position of saying: 'Medical profession, this is all up to you,' " added Mark P. Strasser, a law professor at Capital University Law School in Columbus, Ohio.

Nonetheless, not every court has outright denied the wrongful life claim. Three courts -- California, New Jersey and Washington -- have recognized wrongful life actions.

That being said, though, the courts wouldn't allow the children to recover general damages related to what things would have been like if they hadn't been born.

The courts did allow the children to receive money to pay for their medical expenses.

Looked at that way, the California Supreme Court said that it's "hard to see how an award of damages to a severely handicapped or suffering child would 'disavow the value of life or in any way suggest the child is not entitled to the full measure of legal and nonlegal rights and privileges accorded to all members of society.' "

What doctors need to know

While most states don't recognize a wrongful life claim, most states do recognize a wrongful birth claim. This is a lawsuit that the mother or father files against a physician or other health care professional alleging that negligence with prenatal testing or genetic counseling denied them information that would have resulted in them terminating the pregnancy. In wrongful life, the child, instead of the parents, is the claimant.

In the Willis case, the mother brought a wrongful birth action against Dr. Wu that is still in the court system. But the South Carolina Supreme Court didn't rule on that action because it wasn't asked to give an opinion.

Judson Graves, a partner in Alston & Bird's Atlanta office who defends physicians in medical liability lawsuits, said that physicians should be aware of what the laws are in their states.

To defend themselves against potential wrongful life or wrongful birth lawsuits, he said doctors should make sure they offer patients genetic testing and if necessary document when and why a patient may have refused to have a test performed.

"Record-keeping is always important in this area," said Graves, who has argued wrongful life cases before the Georgia Supreme Court. Georgia is among the states that do not recognize wrongful life claims.

As medicine continues to advance, it's hard to predict what philosophical questions might one day be answered that would allow courts to be more willing to let wrongful life cases proceed. As the U.S. District Court in South Carolina, Charleston Division, said in 1980, "scientific and technological advances, together with the changes in moral attitudes that often accompany such advances, may eventually provide a new perspective from which to analyze this position."

But legal experts predict that in the near future, most courts won't let juries tackle the question of whether it would have been better not to have been born.

Tanya Albert amednews correspondent—

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