CACI No. 513. Wrongful Life - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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513.Wrongful Life - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] failed to inform [name of plaintiff]’s parents of
the risk that [he/she/nonbinary pronoun] 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. [or]
[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 risk of
[genetic impairment/disability], [his/her/nonbinary pronoun]
mother would not have conceived [him/her/nonbinary pronoun] [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, November 2019
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
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physical or mental disability. This is implied by the fourth element in the
instruction.
Sources and Authority
• No Wrongful Life Claim Against Parent. Civil Code section 43.6(a).
• “[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,
212 Cal.App.3d at pp. 702-703)
• “Wrongful life claims are actions brought on behalf of children, while wrongful
birth claims refer to actions brought by parents. 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], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1112-1123
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
MEDICAL NEGLIGENCE CACI No. 513
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Malpractice, § 415.11 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.70 (Matthew
Bender)
CACI No. 513 MEDICAL NEGLIGENCE
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