CACI No. 512. Wrongful Birth - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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512.Wrongful Birth - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[name of defendant] failed to inform [him/her/nonbinary pronoun] of the
risk that [he/she/nonbinary pronoun] 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. [or]
[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].
New September 2003; Revised April 2007
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].)
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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.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1112-1118
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)
MEDICAL NEGLIGENCE CACI No. 512
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