At Law: Job in Court

Abstract

While the bioethics disputes that reach the courts frequently raise issues that are novel and perplexing, the problems are seldom truly philosophical. One exception are the so-called cases brought against health care professionals by children whose parents were misinformed about the children's medical problems at a time when their conception or could have been prevented. From Gleitman v. Cosgrove, the first case thirty-two years ago, the standing of plaintiffs to sue and the compensability of their injuries have been framed--and rejected--on what some judges have termed grounds. First, the courts reasoned, plaintiffs whose case amounts to saying they should never have been born lack standing to sue because they needed to be born in order to be able to bring their case: their claim is a contradiction in terms. The second barrier, as the New Jersey Supreme Court put it in that first case, is the impossibility of calculating damages: that jurors would be unable to compare a child's impaired existence with nonexistence, and more basically, that existence--no matter how burdened--is always preferable to nonexistence[l] Not for the courts is Job's curse, Let the day perish wherein I was born, nor his plaintive lamentation, Why died I not from the womb? Nonetheless, not long ago, it seemed as though the courts would slowly come to allow wrongful life claims by analogy to related cases. Several states, including New Jersey, ruled in favor of suits against physicians brought by children whose parents were denied information relevant to reproductive decisions. As the range and frequency of prenatal--and even preconceptual--medical interventions increase, more claims can be expected in which a negligent act was the direct cause ora child's injuries. In time, the application of standard tort principles in such cases would extend to the similar sorts of injuries that arise when a physician's negligent misstatement of a risk prevents parents from choosing to avoid or terminate a pregnancy. Second, the growing number of claims for of life, brought by patients who receive treatment that they (or surrogates speaking on their behalf) had rejected and who then survived in a painful and undignified state, seemed likely to receive favorable treatment by the courts because the deprivation of choice seems so egregious. Again, the similarity of these claims to so-called wrongful life cases would eventuate in judges coming to accept the latter cases as stating a cause of action for which relief may be granted when supported by appropriate facts. Yet despite a recent multimillion dollar judgment in New Jersey, current suits in a number of states are pointing in the opposite direction. Not only does remain a label applied to claims for which the law offers no redress, but some states have recently reduced parents' ability to bring so-called birth actions to recover the costs of raising a handicapped child who would not have been born but for the negligence of a physician or other provider. Further, the metaphysical objections to plaintiffs' standing to sue and incalculable damages that originated in wrongful life decisions have been transferred to the growing number of extension suits brought by patients kept alive by unconsented-to life-sustaining treatment. These cases expose the profound ethical tension between respecting patients' rights to control their health care (including the constitutionally guaranteed rights to abortion and to limit life-prolonging treatment) and preserving the rights and dignity of disabled persons against the denigration that some believe is implied by awarding damages here. The decisions also serve as a lamentable reminder of the wide gap between the high-flown rhetoric about patients' fundamental right to make medical decisions and judges' unwillingness to award damages when autonomy has been breached. …