“Wrongful birth” in Boston

by Walter Olson on March 8, 2007

We’ve covered a number of cases over the years in which parents sue physicians and others over the “wrongful birth” of perfectly healthy children, demanding, as part of the claimed damages, the cost of raising the youngsters to adulthood: May 9, 2000 (Phoenix), Jun. 8, 2000 (Revere, Mass., outside Boston), Apr. 9, 2006 (Scotland), and Nov. 1, 2006 (Germany). Many such cases arise from failed sterilizations or other efforts at birth control, but a new suit by Jennifer Raper of Boston against Planned Parenthood and two doctors claims that an abortion went awry. “The [Massachusetts] high court ruled in 1990 that parents can sue physicians for child-rearing expenses, but limited those claims to cases in which children require extraordinary expenses because of medical problems, medical malpractice lawyer Andrew C. Meyer Jr. said. Raper’s suit has no mentions of medical problems involving her now 2-year-old daughter.” (“Boston woman sues for child-rearing costs after failed abortion”, AP/Boston Globe, Mar. 7; Jonathan Saltzman, “Suit seeks compensation for botched abortion”, Boston Globe, Mar. 7). More: “One day Jennifer Raper’s daughter will punch her mother’s name into Google and discover that she was the result of ‘a failed abortion.'” (Taranto)

{ 10 comments }

1 jb 03.08.07 at 2:35 am

Isn’t there a shortage of healthy children up for adoption?

I mean, there are multiple eight-letter words beginning with a- and ending with -tion in the English language. At least two of them are options for dealing with unwanted pregnancies. At least one of them is not subject to medical malpractice.

While I’d support malpractice suits for particularly badly botched abortions and sterilizations, the damages asked here are not the damages that should be awarded. What should be awarded is something like this: the cost of the botched procedure(including missed work, etc), the cost of the adoption procedures, the cost of (another doctor) doing the procedure again, and something for pain and suffering. Not 18 years of freebies.

2 David Schwartz 03.08.07 at 7:07 am

I don’t think it’s rational to expect people to mitigate their damages by putting their children up for adoption or having an abortion. The damages should be the actual damages you suffered, less any due to reasonable mitigation you may have failed to do. But having an abortion is not “reasonable mitigation”. I don’t think an adoption is either.

To give an analogy a man can appreciate, imagine if someone injures your penis. Doctors recommend removing the penis so that it doesn’t become gangrenous even though there’s a chance it might recover function. Is it reasonable to make you pay your own costs for leaving your penis attached in the hopes it will recover? Is it reasonable to expect a man to cut off his penis in mitigation?

The big problem, however, is subtracting from any possible award the benefits of having a child. I’m not sure how you do that, or how you balance these mainly non-economic benefits against the economic costs.

However, if a doctor’s negligence causes you economic damages, why should he not have to pay them? The economic equivalent of forced adoptions or forced abortions is as bad as the real thing.

3 spo 03.08.07 at 9:38 am

Clearly, if a sterilization or abortion procedure is not effective due to the negligence of a doctor, there should be damages. That’s kinda the way it works here.

The solution to this issue is legislation. There should be a system like work comp. Legal fees plus statutory damages (say $500K) and that’s it. There could be permutations if the negligence harmed the child, but let’s cap damages, go to no fault and be done with this.

4 David Nesting 03.08.07 at 10:24 am

So these children grow up, and they realize that not only were they a mistake, but their parents consider their very existence to be “harm” for which they are being compensated monthly by the doctor that inflicted them upon their parents.

The emotional damage arising from this should automatically make the parents unfit to raise the child in the first place.

You can’t argue that the fact that you have to raise a child is “harm” while simultaneously arguing that you shouldn’t have to put it up for adoption. If you elect to keep the child, then you elect for the responsibility and costs of raising it.

I completely agree with jb here. The purpose of a malpractice suit is to make the victim “whole” again. If the victim can mitigate some of those economic damages, he has the responsibility to. Awards should not exceed the harm the plaintiff suffered that was outside of the plaintiff’s control.

I don’t understand the penis analogy at all. If anything, the logic should be turned around. You go to a doctor to get castrated, he botches the procedure, but you get kind of attached to your mangled member and decide to keep it the way it is and sue the doctor for a lifetime of treatment to keep it as healthy as you can. The doctor shouldn’t be liable for that. He acted because you didn’t want the penis (child) in the first place. He shouldn’t be the one penalized when you change your mind later.

If you don’t want the child, then the presence of the child is harm, and we need to figure out an appropriate remedy (like getting rid of it somehow through adoption). If you do want the child, then you’re not really harmed, are you?

5 jb 03.08.07 at 10:49 am

David Schwartz:

The parents didn’t want a kid, so they had a procedure to stop that from happening. They had a kid because the doctor screwed up. The damages should reflect the costs of the cheapest feasible way of rectifying the situation.

A better analogy would be movers: You’re moving house, you hire movers. They don’t show up, so you have to postpone moving out of your house, with all the attendant costs in delays, plus paying double rent for your place and your new place. Should you sue them for your costs until you can practicably move again? Yes. Should you decide to keep both places and sue them for the cost of rent for your old place indefinitely?

If the parents keep the kid despite the possibility of adoption, then clearly they want the kid, which means that the surgery to make them not have the kid was unneccesary, so damages from it should be minimal.

6 tsiroth 03.08.07 at 7:04 pm

I don’t disagree that damages are in order for botched medical procedures, but:

12 years ago I gave up my healthy newborn daughter for adoption because I couldn’t afford to care for her properly.

The notion of someone who DOESN’T WANT a child refusing to put that child up for adoption and suing to pay for child care is appalling.

7 Marty 03.08.07 at 9:07 pm

Any particular reason this woman is not suing the father for paternity and child support?

8 TC 03.09.07 at 2:32 am

http://www.nicedoggie.net/2007/?p=286#comments

Another and very possible point of view.

Three months and one can’t figure out they still are not having their time of the month? That they are growing like a steer in a feed yard?

Fine the timing is very tight, but her getting pharked again takes but a moment in time.

Ask that Crystal girl from Durham! The one that had 5 guys stuff on/in her and gave birth 9 months later, give or take some leisure time.

9 jb 03.09.07 at 3:19 pm

On a more snarky note, how the hell did the name “Raper” not get changed at the first chance?

That has to be the least fortunate last name I’ve ever heard.

10 ben tillman 03.09.07 at 7:09 pm

“Isn’t there a shortage of healthy children up for adoption?”

Yep. We have an intervening cause. This is what Rule 11 is for.

“What should be awarded is something like this: the cost of the botched procedure(including missed work, etc), the cost of the adoption procedures, the cost of (another doctor) doing the procedure again, and something for pain and suffering. Not 18 years of freebies.”

Exactly.

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