CACI No. 512. Wrongful Birth - Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2024 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 child with a [genetic
impairment/disability]. 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, May 2023
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].)
460
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].)
• “[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.)
• “A mere 20 percent chance does not establish a ‘reasonably probable causal
connection’ between defendants’ negligent failure to provide [a genetic] test and
plaintiffs’ injuries. A less than 50-50 possibility that defendants’ omission caused
the harm does not meet the requisite reasonable medical probability test of
proximate cause.” (Simmons, supra, 212 Cal.App.3d at pp. 702-703.)
• “[W]e conclude that while a plaintiff-child in a wrongful life action may not
recover general damages for being born impaired as opposed to not being born
at all, the child - like his or her parents - may recover special damages 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].)
• “Although the parents and child cannot, of course, both recover for the same
medical expenses, we believe it would be illogical and anomalous to permit only
parents, and not the child, to recover for the cost of the child’s own medical
care.” (Turpin, supra, 31 Cal.3d at p. 238.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1110-1118
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.22a, 9.23b
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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© Judicial Council of California.
