AFTER A High Court decision against wrongful life claims, the Australian Lawyers Alliance has called for governments to consider legislation protecting the right of disabled children and their parents to sue for damages incurred by medical negligence leading to their birth.
The court rejected 6-1 the right of Keedan Waller and Alexia Harriton to claim damages for medical and care costs stemming from their being born with congenital disorders.
Waller, now 5, was born with permanent brain damage and suffers from cerebral palsy. His parents’ medical carer failed to advise them of the consequences for their unborn child of the father’s blood-clotting disease. Harriton, now 25, is blind, deaf and has mental retardation. Her mother’s doctor failed to diagnose rubella in the first trimester, or to warn of possible abnormalities at birth, the Australian Lawyers Alliance noted last week.
According to the Alliance, the decision was unfortunate because the victims will obtain no compensation, even though there was negligence on the part of a doctor. The Alliance’s medico-legal expert Bill Madden argued the cases highlight the complexity of wrongful life claims. “They show how hard it is to assess damages when the only alternative can be that the people would never have been born,” he said.
“However, just because it is a difficult thing doesn’t mean the law shouldn’t make some allowance for damages awards where there has clearly been negligence on the part of the doctors resulting in severe disability.”
In New South Wales and Queensland, current legislation provides that parents cannot claim care costs for ‘wrongful birth,’ of a healthy child whose birth the medical carer should have prevented, but leaves open what should happen when children are born disabled. “Although courts haven’t been able to decide the issue, governments should consider this issue and legislate accordingly,” Madden said.
Historically, most courts around the world have rejected claims for wrongful life, usually based on public policy considerations and the idea of the sanctity of life. However, such suits are on the rise in the US and Europe.