California Civil Jury Instructions (CACI)

513. Wrongful Life - Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] failed to inform [name of plaintiff]’s parents of the risk that [he/she] would be born [genetically impaired/disabled]. 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]’s parents of] the risk that [name of plaintiff] would be born with a [genetic impairment/disability];]


[1. That [name of defendant] negligently failed to [perform appropriate tests/advise [name of plaintiff]’s parents of tests] that would more likely than not have disclosed the risk that [name of plaintiff] would be born with a [genetic impairment/disability];]

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

3. That if [name of plaintiff]’s parents had known of the [genetic impairment/disability], [his/her] mother would not have conceived [him/her] [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]’s parents to have to pay extraordinary expenses for [name of plaintiff].

New September 2003; Revised April 2007, April 2008

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. 512, Wrongful Birth—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].)

In order for this instruction to apply, the genetic impairment must result in a physical or mental disability. This is implied by the fourth element in the instruction.

Sources and Authority

  • “[I]t may be helpful to recognize that although the cause of action at issue has attracted a special name—‘wrongful life’—plaintiff’s basic contention is that her action is simply one form of the familiar medical or professional malpractice action. The gist of plaintiff’s claim is that she has suffered harm or damage as a result of defendants’ negligent performance of their professional tasks, and that, as a consequence, she is entitled to recover under generally applicable common law tort principles.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229 [182 Cal.Rptr. 337, 643 P.2d 954].)
  • “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].)
  • General damages are not available: “[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, supra, 31 Cal.3d at p. 239.)
  • A child may not recover for loss of earning capacity in a wrongful-life action. (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614 [208 Cal.Rptr. 899].)
  • 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.)
  • Wrongful life does not apply to normal children. (Alexandria S. v. Pac. Fertility Medical Ctr. (1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23].)

  • Civil Code section 43.6(a) provides: “No cause of action arises against a parent of a child based upon the claim that the child should not have been conceived or, if conceived, should not have been allowed to have been born alive.”

Secondary Sources

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, § 415.11 (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, § 165.70 (Matthew Bender)