Diminished Lives and Malpractice: Courts Stalled in Transition

Abstract

Medicine is still largely a pre-Darwin, pre-Newton enterprise.. . . We do not yet understand the underlying mechanisms of the major illnesses which plague humanity, and therefore much of what is done in the treatment of illness must still be empirical, trial and error therapy. We are compelled by our limitations to resort to shoring things up, applying halfway technology, trying to fix things after the fact.The judicial debate continues to rage over the right of a child born suffering from genetic impairments to recover on his own behalf against a physician or laboratory which failed to give his parents correct information about the defect. These “wrongful life” suits are brought by parents on behalf of their child, who in most cases is born suffering from mental or physical defects which could have been detected by genetic screening. In contrast, “wrongful birth” suits are actions brought by parents of a child born as the result of a defendant’s negligence, seeking damages for either the costs incident to the unwanted pregnancy and birth of a normal child, or the costs related to the unexpected birth and care of an impaired child.