California Civil Jury Instructions (CACI)
512. Wrongful Birth - Genetic Testing - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because [name of defendant] 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/ [or] warn [name of plaintiff] of] the risk that [name of child] would be born with a [genetic impairment/disability];]
[1. That [name of defendant] negligently failed to [perform appropriate tests/advise [name of plaintiff] of tests] that would more likely than not have disclosed the risk that [name of child] would be born with a [genetic impairment/ disability];]
2. That [name of child] was born with a [genetic impairment/ disability];
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 defendant]’s negligence was a substantial factor in causing [name of plaintiff] to have to pay extraordinary expenses to care for [name of child].
Directions for Use
The general medical negligence instructions on the standard of care and causation (see CACI Nos. 500—502) may be used in conjunction with this instruction. Read also CACI No. 513, Wrongful Life—Essential Factual Elements, if the parents’ cause of action for wrongful birth is joined with the child’s cause of action for wrongful life.
In element 1, select the first option if the claim is that the defendant failed to diagnose or warn the plaintiff of a possible genetic impairment. Select the second option if the claim is that the defendant failed to order or advise of available genetic testing. In a testing case, there is no causation unless the chances that the test would disclose the impairment were at least 50 percent. (See Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702—703 [260 Cal.Rptr. 772].)
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 members 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.’ ” (Gami, supra, 18 Cal.App.4th at p. 877.)
- The negligent failure to administer a test that had only a 20 percent chance of detecting Down syndrome did not establish a reasonably probable causal connection to the birth of a child with this genetic abnormality. (Simmons, supra.)
- 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. The child may also recover medical expenses in a wrongful-life action, though both parent and child may not recover the same expenses. (Turpin, supra, 31 Cal.3d at pp. 238—239.)
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 979—985
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.21—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)