Wrongful birth reaches Germany

by Walter Olson on November 15, 2006

“A court ruling which ordered a gynecologist to pay child support for up to 18 years as compensation for botching a contraceptive implant was condemned by the German media as scandalous on Wednesday. The Karlsruhe-based federal appeals court ruled on Tuesday that the doctor must pay his former patient, now a mother of a three-year-old boy, 600 euros ($769) a month because she became pregnant after he implanted her with a contraceptive device.” (“Doctor ordered to pay for unwanted baby”, Reuters, Nov. 15; “GYN’s “Human” Error Will Now Be Getting Child Support”, Deutsche Welle, Nov. 15). Similar: Apr. 9 (Scotland), May 9 and Jun. 8, 2000, etc.

{ 11 comments }

1 Supremacy Claus 11.15.06 at 1:27 pm

This ruling seeks to establish a 100% warranty on medical procedures, impossible in the real world.

The standard policy arguments against such a ruling are these, until someone changes them:

http://www.law.suffolk.edu/arodau/site.asp?page=publications&id=articles/birth

Basically, such claims promote abortion. The government should not do so.

2 Deoxy 11.15.06 at 3:38 pm

Boy, wouldn’t you love to be that kid? “Yes, honey, we get mony because I really didn’t want you to exist.” Not quite as bad as some of the others I’ve seen (the “we would have aborted th baby if we had known” kind), but still, pretty lousy.

If these kinds of suits are to b allowed, th parent should at least have to give up custody of the child, sinc the suit itslf should count as severe child abuse.

(Of course, that’s assuming that the suit is anything other than a money grab, which is a bit of an assumption these days, I suppose.)

3 Amy Alkon 11.15.06 at 4:41 pm

Regarding “promoting abortion,” sigh…it seems, even here, people buy into the nonthink of religion. A potential life is not a human being. I had an abortion — at the one week mark, when the “fetus” isn’t even as big as the head of a pin. Murder? Or scraping away of unwanted cells that have the potential to become a screaming, pooping, unwanted child that I have no interest in raising?

I’m all for abortion, but I’m even more all for responsible use of birth control. Accidents do happen. Of course, I blame myself when they do — I don’t seek to squeeze others for cash.

4 Deoxy 11.15.06 at 6:32 pm

The abortion debate is far larger than can be held here, but suffice it to say that “religious nonthink” is not remotely required to oppose abortion any more than it is required to oppose murder, and your gratuitous insults don’t help you any.

The abortion debate is a mess because what WON’T get debated is the actual point of disagreement: when a human life begins.

No “religious nonthink” is required to come to a different conclusion than you on that point, and the rest of one’s position on abortion writes itself based on that conclusion.

I’ve read several of your posts before, and I’m sorry you have such a problem with religion and religious people, but that’s no reason to smear them and people who happen to agree with (many, not even remotely all) of them on a particular topic.

5 David Schwartz 11.15.06 at 6:50 pm

Let’s not confuse two completely different things. This is not an argument for a 100% warranty on medical procedures. In this case, the plaintiff showed (or at least, the court found that she showed) that the procedure was done improperly.

Obviously, anyone who agrees to a medical procedures agrees to the risks, known and unknown. But that has no bearing on a doctor’s culpability when he does the procedure improperly or negligently.

So long as the law requires plaintiffs to show a sufficiently negligible performance of the doctor’s duties and that the negligence was the proximate cause of some harm or cost to the patient, why shouldn’t the doctor be responsible for the harms his negligence caused?

There is no public policy interest in immunizing doctors from the harmful consequences of their serious negligence.

As for the suit constituting child abuse, that strikes me as crazy in the extreme. I would argue it’s parental negligence to ignore a child’s legitimate claim to the support of another person who is responsible for their existence. If instead of the doctor, the responsible person was the father, nobody would hold that it’s abuse to try to get the father to pay support. There is no *rational* reason to see a difference, only emotional ones.

6 pgbMD 11.15.06 at 7:29 pm

“There is no public policy interest in immunizing doctors from the harmful consequences of their serious negligence.”

I agree. We should remove immunity from all beings including judges and politicians.

7 Schmitty 11.15.06 at 8:22 pm

I believe this post is misconstruing the idea of a “wrongful birth” suit. The original (and in my view more scandalous) idea of wrongful birth was suing a doctor because he failed to diagnose a child with an abnormality (e.g. a birth defect), on the theory that had the mother known about the defect, she would have aborted the child. The case at hand has absolutely nothing to do with the failure to diagnose a birth defect (or even the failure to recognize a pregnancy, as has been the case with some wrongful birth suits). Rather, this has to do with a doctor who failed to competently perform a birth control procedure, the result of which was the birth of a child.

There is no indication the mother learned of the pregnancy too late to have an abortion; nor is there an indication that the mother wanted an abortion. Indeed, the mother could have obtained an abortion to mitigate her economic damages; instead, she decided to have the child, and seek damages from the doctor. This should be a case praised by pro-life activists.

8 Supremacy Claus 11.15.06 at 8:40 pm

PGB: I, as you do, support ending all lawyer and judge immunities from the beneficial effects of torts.

9 Supremacy Claus 11.15.06 at 10:07 pm

Schmitty: Think hard. Way, way back. Back to 1L.

Unforeseen intervening cause? Sound familiar? No?

If the mother chose to have the child? Yes, is it coming back?

That breaks the chain of legal causation. Remember?

10 AMcA 11.16.06 at 11:53 am

Wonder if they tried to argue failure to mitigate damages. Stay with me here: the “mother”, who so much did not want said child, should have put the child up for adoption, thus mitigating her damages. The beauty of this theory: she cannot, after saying she did not want children, now take the position that “of course I want this child, and therefore could not conceive (!) of putting the litte dear up for adoption.”

11 David Schwartz 11.18.06 at 5:12 am

You say: [S]he cannot, after saying she did not want children, now take the position that “of course I want this child, and therefore could not conceive (!) of putting the litte dear up for adoption.”

Of course she can. That’s what all rational people do when they conceive a child even though they did not wish originally want to conceive one.

Is it irrational for a person to say, “I have no desire to bring a child into this world, that’s why I use contraception. However, if I accidentally conceived a child, I would certainly bring it to term and love it.”

It seems anyone who believed human life began at or shortly after conception would take this position.

Not wanting to bring a child into this world is not even remotely the same as not wanting your child once it has been brought to or nearly to term.

But the main point you are missing is that the decision to abort is the mother’s sole decision and is simply not the kind of thing a person can be required to do. It may mitigate your damages if I eat maggots, run naked through the street, and donate my kidneys, but that can’t mean that I’m required to do them. It is absurd to argue that failure to have an abortion is a failure to mitigate damages.

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