PHILOSOPHY OF LAW
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HAND-OUTS
SPRING 2003




Can Life Itself Be Wrongful?

PAPER TOPIC II

("You Are the Judge")

Drawing on the reading and your own considered opinion and good judgment, answer the question on the following pages. The question lays out a case of liability for a failure to warn, more complex and, one might add, more perplexing, than Bernstein v. Overseers of Harvard (handout in class and online).

In this case the parents sue the doctors for the "wrongful life" of their daughter, not for her "wromgful death" as was the case in Ariana's case who died at the hands of George Gilbert after he was released from Cambridge City Hospital, if you recall. That case was based on an actual case, in California, a quite famous case, called Tarasoff v. Regents of the University of California.

In arguing for your position, think of the arguments that might be made against it, and respond to them. In defending your position, offer what you believe are the most principled arguments you can make.

In thinking of objections to your argument, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest point rather than at its weakest, that can only help to strengthen your own opinion and make it that much more persuasive.

The paper should be about five (5) to seven (7) pages in length, preferably typewritten. It is due on Monday, March 24th, in class. .




Can Life Itself Be Wrongful?

- Negligence, Liability and the Law -




A basic element of negligence or any other tort is that the party who has "suffered" must have suffered some wrong, harm, or injury.

But can life itself be an injury?

Some years ago the parents of Ron Goldman and Nicole Brown filed a "wrongful death" suit against O. J. Simpson and subsequently won their suit in a Santa Monica Court. In Tarasoff v. Regents of the University of California., 131 California Reports 14, 1976, the actual case upon which the hypothetical Bernstein v. Overseers of Harvard . is based, Tarasoff's parents sued the University of California for the "wrongful death" of their daughter on the grounds that the University physicians' had been negligent in their failure to warn their daughter of the danger she was in from a student whom the physicians knew had threatened to kill her. Many products liability cases also turn on the question whether the manufacturer was negligent in failing to warn potential consumers of some danger or defect.

But what about the following case?

On September 11, 1975 Paul and Shirley Greenfield filed a malpractice suit against Benjamin Williams and Robert Merowitz, medical doctors for the State of Massachusetts, for their "negligent failure to warn" Shirley Greenfield, the mother of a baby girl afflicted with Down's Syndrome, about amniocentesis. The Greenfields filed their suit in their own names and on behalf of Sharon as her legal Guardians.

On November 3, 1974 Sharon was born with Down's Syndrome - a genetic defect commonly referred to as mongolism. At the time of Sharon's birth, Shirley Greenfield was 38 years old. The Greenfields allege that the doctors deviated from accepted medical practice by failing to inform Shirley during her pregnancy of the existence of the procedure known as amniocentesis. This procedure involves the insertion of a long needle into the mother's uterus and the removal of a sample of amniotic fluid containing fetal cells. Through "karyotype" analysis - a procedure in which the number and structure of chromosomes are examined - the sex of the fetus as well as the presence of gross chromosomal defects can be detected.

The Greenfields claim that had Shirley been informed of the risk that her child might have a genetic defect, given Shirley's age at the time, and had she been informed about the availability of amniocentesis, she would have submitted to the amniocentesis procedure, discovered that the child, if born, would suffer from Down's Syndrome, and she would have had the fetus aborted.

As a result of the doctors' negligent failure to warn Shirley of the risks and inform her of her options, the Greenfields are seeking as their daughter's Guardians and on her behalf compensation for the physical and emotional pain and suffering that Sharon will have to endure throughout her life because of her condition. The Greenfields also seek as Sharon's parents damages in their own right both for the emotional anguish which they have experienced and will continue to experience on account of Sharon's birth defect, and for the medical and other costs which they will incur in order to raise, educate, and supervise their daughter properly.

The claim for damages asserted on Sharon's behalf does not assert that absent the doctors' negligence she would have come into the world a normal and healthy human being. There is also no suggestion in the medical literature that had the Greenfields been made aware of the fact their child would be born with Down's Syndrome that any therapy or further medical procedure could have been applied that would have reduced the risk that, upon birth, Sharon would suffer from Down's Syndrome.

This case differs from usual malpractice suits where a plaintiff alleges that a doctor's deviation from sound medical practice increased the probablity that an infant would be born with defects. Nor are we dealing here with a case where something was done during the course of pregnancy that caused what otherwise would have been a normal and healthy child to come into the world in an impaired condition. Here the doctors' alleged negligence neither caused the condition nor increased the risk that such a condition would occur. Indeed the Greenfields agree and so state in their suit on behalf of their daughter that "Sharon claims not that she would have been born without defects, but that she should not have been born at all." In essence, Sharon claims that her very life is "wrongful."

Did the doctors' negligence cause Sharon's "wrongful life?"

Should Sharon receive damages for her "wrongful life?"

Should her parents be able to recover damages in their own right for the "wrongful birth" of their daughter?

Make a case for or against the liability of the doctors for Sharon's "wrongful life," think of the best arguments that the attorney on the "other" side might offer, and respond to those arguments.

You should feel free to expand upon the "facts" of this case as outlined above in order to explore how a change in this or that fact might affect your answer.

To imagine, for example, that Sharon is much older and brings suit herself against the doctors for her "wrongful life." Does it make any difference to this case that her parents file suit on their daughter's behalf?

The primary purpose of tort law is to provide ways for plaintiffs to gain compensation for injuries they have wrongfully suffered at the hands of others. How are Sharon's injuries to be measured in this case? Has she suffered an injury?

You may wish, too, to compare this case with Tarasoff. There plaintiffs accused doctors of a negligent failure to warn, only in that case the result was a "wrongful death," not a "wrongful life." Can a "wrongful life" be a valid cause of legal action? Why? And if not, why not?






Prepared: February 12, 2003 - 5:02:29 PM
Edited and Updated, February 13, 2003


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