CACI No. 511. Wrongful Birth - Sterilization/Abortion - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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511.Wrongful Birth - Sterilization/Abortion - Essential Factual
[Name of plaintiff] claims that [name of defendant] negligently failed to
prevent the birth of her child. To establish this claim, [name of plaintiff]
must prove both of the following:
1. That [name of defendant] performed a negligent
[sterilization/abortion] procedure; and
2. That [name of plaintiff] gave birth to an unplanned child after this
procedure was performed.
New September 2003
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
No Defense for Parent’s Failure or Refusal to Prevent Live Birth. Civil Code
section 43.6(b).
“California law now permits a mother to hold medical personnel liable for their
negligent failure to prevent or to terminate a pregnancy.” (Foy v. Greenblott
(1983) 141 Cal.App.3d 1, 8 [190 Cal.Rptr. 84].)
Negligent sterilization procedure that leads to the birth of a child, either normal
or disabled, can form the basis of a wrongful birth action. (Custodio v. Bauer
(1967) 251 Cal.App.2d 303, 323-325 [59 Cal.Rptr. 463]; Morris v. Frudenfeld
(1982) 135 Cal.App.3d 23, 37 [185 Cal.Rptr. 76].) The same is true of an
unsuccessful abortion procedure. (Stills v. Gratton (1976) 55 Cal.App.3d 698,
707-709 [127 Cal.Rptr. 652].)
A wrongful birth claim based on a negligently performed sterilization or abortion
procedure does not support an action for wrongful life: “California courts do
recognize a wrongful life claim by an ‘impaired’ child for special damages (but
not for general damages), when the physician’s negligence is the proximate
cause of the child’s need for extraordinary medical care and training. No court,
however, has expanded tort liability to include wrongful life claims by children
born without any mental or physical impairment.” (Alexandria S. v. Pac. Fertility
Medical Ctr. (1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1110
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)

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