512. Wrongful Birth - Genetic Testing - Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] failed to inform [him/her] of the risk that [he/ she] would have a [genetically impaired/disabled] child. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] negligently failed to diagnose and warn [name of plaintiff] that [name of child] would probably be born with a [genetic impairment/disability]; and

2. That [name of child] was born with a [genetic impairment/ disability]; and

3. That if [name of plaintiff] had known of the [genetic impairment/disability], [insert name of mother] would not have conceived [name of child] [or would not have carried the fetus to term]; and

4. That [name of plaintiff] will have to pay extraordinary expenses to care for [name of child].

Directions for Use

The general medical negligence instructions—instructions on the standard of care and causation—could be used in conjunction with this one.

Sources and Authority

"Claims for 'wrongful life' are essentially actions for malpractice based on negligent genetic counseling and testing." (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 883 [22 Cal.Rptr.2d 819].) Since the wrongful life action corresponds to the wrongful birth action, it is reasonable to conclude that this principle applies to wrongful birth actions.

Regarding wrongful life actions, courts have observed: "[A]s in any medical malpractice action, the plaintiff must establish: '(1) the duty of the professional to use such skill, prudence, and diligence as other embers of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' [Citation.]" (Gami, supra, 18 Cal.App.4th at p. 877.)

Both parent and child may recover damages to compensate for "the extraordinary expenses necessary to treat the hereditary ailment." (Turpin v. Sortini (1982) 31 Cal.3d 220, 239 [182 Cal.Rptr. 337, 643 P.2d 954].)

In wrongful birth actions, parents are permitted to recover the medical expenses incurred on behalf of a disabled child. (Turpin, supra, 31 Cal.3d at p. 238.) Such children can also recover medical expenses in a wrongful life action, though both parent and child may not recover the same expenses. (Ibid.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 797-800, pp. 143-152

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, §§ 31.15, 31.50 (Matthew Bender)

California Tort Guide (Cont.Ed.Bar 1996) §§ 9.21-9.22

36 California Forms of Pleading and Practice, Ch. 414, Physicians and Other Medical Personnel (Matthew Bender)

(New September 2003)