Posted by: bridget | 19 November 2006

Birth Control, Torts, and Semantics

A German gynaecologist who incorrectly implanted a birth control device, leading to his patient’s pregnancy, was ordered to pay child support.  The ruling caused quite a bit of outrage: the idea that a doctor is responsible for the failure of his patient’s birth control – and therefore liable for child support, when he has no genetic relation to the child – is indeed problematic.

Consider, though, that this has a very strong foundation in tort law.  Replace “child support” with “damages for wrongful life,” and the whole thing makes quite a bit of sense.  A doctor who botches a vasectomy or tubal ligation would be liable for the cost of raising the child.   Likewise, doctors are frequently liable for their errors and omissions – apparently, this gynaecologist did not insert the device correctly.  “Wrongful life” claims have been asserted against doctors who mis-diagnose a woman who is carrying a disabled child or OB-GYNs whose negligence causes lifelong injury.  While the doctor did not get the woman pregnant in the traditional manner, he is still responsible for her pregnancy through his negligence.

Tort law seeks to put the wronged party back to its pre-breach position.  In wrongful life cases, this is done when the tortfeasor gives the parents the cost of raising the child, thus avoiding existential questions and issues about the value of life v. non-life.

Breach, damages – this is all very straightforward.  What’s the issue? 

Semantics.  If the doctor pays out a lump sum, we call it damages, even when that lump sum is the net present value of 18 years of child support.  Some tort damages are paid out in annual or monthly installments (generally better for both parties, as the individuals tend to not be good at making the lump sum last, and the insurance companies can invest it in such a way as to yield a higher return); those are still considered to be damages.  The real issue here is that damages are paid out monthly and are done for wrongful life – i.e. for the support of a child.  This walks and talks like child support, so the media called it “child supprt,” which upsets everyone who doesn’t stop to think about the legally accepted remedy for wrongful life.

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