Birth Related Torts
Edward P. Richards
Director, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of Law
Louisiana State University Law Center
Baton Rouge, LA 70803-1000
richards@lsu.edu
http://biotech.law.lsu.edu
Negligent Injury to the Fetus
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These are ordinary medical (or other) injuries that harm
the child before birth
Exposure to tetratogens
 Thalidomide
 Accutane
Diseases
 Measles
 Syphilis
 HIV
Who Brings Negligent Injury to the Fetus
Claims?

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Parents
 Damages related to the medical and other costs
due to the disability
 Some emotional damages, but not for the birth
of the child
Child
 The child can bring a claim for his or her own
injuries and long term disability
Wrongful birth

Damage claim brought by the parents
 Costs related to pregnancy and the birth
 Lost of consortium and related damages
 Can include special costs of raising a child with
disabilities that are caused by the physician's
negligence
What types of Negligence Support
Wrongful Birth?

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Physically preventing the birth
 Negligently performed sterilization
 Negligence in prescribing birth control
Counseling about conception
 Negligent genetic counseling
 Negligent counseling about other risks
Public Policy Issues in Wrongful Birth

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Public policy is that a child, even an unwanted
child, has intrinsic value
 No state allows damages for the usual costs of
rearing a child
 No state allows emotional damages for the birth
of an unwanted child
Damages for a healthy child are limited to the cost
of the pregnancy
Wrongful Life

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This is a claim by the child
 The basis of the claim is that the child has been injured by
being born
The public policy is that existence is preferable to non-existence
 The courts discuss the impossibility of assigning damages to
life itself
 This is separate from damages for injuries caused by
negligence
Classic case is a child born with birth defects after a failed
sterilization where the physician had nothing to do with the birth
defect - like Pitre
Prescription in Fetal Injury Cases: Bailey
v. Khoury, 891 So.2d 1268 (La. 2005)
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(Injury due to defendant's negligence)
Defense claim:
 defendants argue that an unborn child who is later
born alive is considered a natural person from the time
of its conception, and that prescription runs against
an unborn child prior to its birth
 defendants argue that Louisiana law contains
absolutely no support for Ms. Bailey's argument that
an unborn child should be treated differently from
other natural persons for purposes of prescription.
Claim on Behalf of the Child


Louisiana law specifically provides that the "legal fiction"
of natural personality that attaches to an unborn child
from the moment of conception pursuant to La. Civ. Code
art. 26 applies only when such application is for the
benefit of the child or for the preservation of its interests
Thus, we hold that Ms. Bailey's claim filed on behalf of
Jada accrued on March 20, 1997, the date Jada was born,
and that prescription on that claim therefore commenced
on that date.
Claim on Behalf of the Mother

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Does the claim run from when she found out about the
birth defects, or from when the baby was born?
 Can there be different prescription dates for the same
tort?
We find that the defendants failed to carry their burden of
proving that any damages suffered by Ms. Bailey prior to
Jada's birth manifested themselves with sufficient
certainty to support accrual of a cause of action.
 The court implies that there can be more than one
prescription date, but not in this case