Preconception, prenatal and postnatal considerations

At common law, an unborn child had no existence as a human being separate from its mother and therefore it had no right of action for personal injuries inflicted upon it prior to its birth by the wrongful conduct of another. The common law has completely shifted and all American jurisdictions now permit a tort action for prenatal injuries negligently inflicted if the child is born alive. California rejected the common law rules and created a new cause of action for prenatal injuries by a child who survives prenatal injuries and is born alive in Scott v. McPheeters ((1939) 13 Cal. App. 2d 629. 632. See also Wilson v. Kaiser Foundation Hospitals (1983) 141 Cal. App. 3d 891, 896-97; Norman v. Murphy (1954) 124 Cal. App. 2d 95, 98.).

Civil Code section 43.1 (formerly Civil Code section 29) states: "A child conceived, but not yet born, is deemed an existing person, so far as necessary for the child's interests in the event of the child's subsequent birth."

For purposes of an insurance policy providing coverage for liability due to bodily injury sustained by any "person," a term which was not defined in the policy, a fetus that was injured during the first trimester and subsequently born alive five months after the policy had lapsed, was a "person" at the time of the injury when the policy was still in force. (Endo Laboratories, Inc. v. Hartford Ins. Group (1984) 747 F.2d 1264.) But if the injured unborn child is not born alive, a cause of action does not arise on its behalf because a stillborn fetus is not a "person" within the meaning of California's wrongful death statute. (Wilson v. Kaiser Foundation Hospitals, supra, 141 Cal. App. 3d 891 897.)

In Snyder v. Michael's Stores, Inc. ((1997) 16 Cal. 4th 991), while she was pregnant the mother was exposed to toxic fumes in her workplace. As a result of this exposure, her unborn child suffered permanent damage to her brain and nervous system, causing her to be born with cerebral palsy and other disabling conditions. The California Supreme Court rejected the defendant's argument that the child's civil action was barred by the exclusivity provisions of the workers' compensation act and held that the child's injury was not dependent on or derived from any injury to the mother.

In Justus v. Atchison ((1977) 19 Cal. 3d 564.), the Supreme Court ruled that an unborn fetus was not a "person" within the meaning of the wrongful death statute. (Code of Civil Procedure section 377; now section 377.60.) The high court concluded that the wrongful death statute requires a live birth for a fetus to be considered a "person." The decision was based in part on the fact that "there are major and decisive areas where the embryo and fetus are not treated as equivalent to the born child." (19 Cal. 3d at 577.)

On the difference of the loss suffered by the parents of a stillborn fetus and parents of a live child that is killed, the Supreme Court stated in Justus: "Without in any way denying the reality of that loss, we are compelled to observe that the class of parents who suffer the greatest deprivation of this nature are those whose child has been born alive. The parents of a stillborn fetus have never known more than a mysterious presence dimly sensed by random movements in the womb; but the mother and father of a child born alive have seen, touched, and heard their baby, have witnessed his developing personality, and have started the lifelong process of communicating and interacting with hm. These are the rich experiences upon which a meaningful parent-child relationship is built, and they do not begin until the moment of birth." (19 Cal. 3d at 581.)

In an earlier case (Norman v. Murphy, supra, 124 Cal. App. 2d 95.), the husband and wife were injured in an automobile accident that resulted in the death of their unborn child. Holding that there was no separate action for the wrongful death of the unborn child, the court stated: "The need for a right of action for the death of an unborn child is more apparent than real. The burial expenses asked for in the present action may be recovered by the parents as incidents of their own damages. Considering the highly speculative nature of the pecuniary value of an unborn child, even if viable, it is apparent that practically everything that could be recovered in an action for the death of an unborn can now be recovered by the mother in connection with her own claim for general damages. The legislature could easily have conferred such a right of action but, in our opinion, it has not done so." The court thereupon concluded that an unborn child was not a "person" under the wrongful death statute and no action could be brought for its death. (124 Cal. App. 2d at 99, applying Civil Code section 377.)

When a fetus dies during childbirth the exact time of death and location of the fetus is crucial to determining the viability of a wrongful death action. If the child is born alive yet lives only a second or more, an action for wrongful death conceivably will exist. On the other hand, where the fetus dies seconds before birth, an action for wrongful death will not lie.

An unborn child whose father has died due to another's tortious conduct may bring an action for the wrongful death of that parent provided the child is born alive. In Cheyanna M. v. AC Nielsen Co. ((1998) 66 Cal. App. 4th 855), the decedent had a sexual affair with the child's mother but was killed in an accident before the child was born. After the child was born alive, an action was brought on its behalf for wrongful death against the defendants for negligence in causing its father's death. Code of Civil Procedure section 377.60 provides that a wrongful death action may be asserted by the surviving spouse, domestic partner, children, and issue of any deceased children. If there are no surviving issue of the decedent, the person, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. The court held that the posthumously born child was a "person" under the Probate Code and therefore entitled to maintain a wrongful death action against the persons and entities responsible for the death of its father.

Preconception Injuries

In Heyges v. Unjian Enterprises, Inc. ((1991) 13 Cal. App. 3d 1103), a minor child brought suit for preconception negligence against the driver of a vehicle that had collided with her mother's car several years before the woman became pregnant with the child. As a result of the accident, the woman suffered various injuries and was fitted with a lumbo-peritoneal shunt. Several years later she became pregnant, but because of the pressure the shunt was putting on the fetus, the child was born 51 days prematurely, suffering various medical conditions. The court held that the driver who collided with the woman's car did not owe a duty of care to her child who had not yet been conceived. The court held that a cause of action would lie for damages by an infant as a result of a defendant's preconception negligence only when there is a "special relationship" - a medical professional or product liability - between the defendant and the victim's mother giving rise to a duty of care to the infant. Absent a medical professional relationship or product liability, no legal duty is imposed upon parties to protect subsequently conceived fetuses from injury. (Accord, Avila v. Willits Environmental Remediation Trust (9th Cir. 2011) 633 F.2d 828.)

In Elsheref v. Applied Materials ((2014) 223 Cal. App. 4th 451), a man who worked as an engineer at defendant's semiconductor manufacturing facility claimed that he was exposed to toxic chemicals which resulted in his son being born with serious defects. The appellate court held that while the first five causes of action of his complaint did not allege a duty or a special relationship sufficient to create a preconception duty upon the worker, and therefore could not serve as the basis for a preconception injury, his sixth cause of action for strict products liability was sufficient to state a cause of action against his employer for preconception injuries.

Wrongful Birth

A wrongful birth action is one brought by the parents following the live birth of a child. It may be that a doctor negligently performed a sterilization or abortion, leading to the arrival of a healthy child. Or there may have been negligence in testing or failing to test the parents or fetus, resulting in the birth of a child born afflicted with a hereditary or genetic disease, such as Tay Sachs Disease or Down Syndrome.

An action for wrongful birth was first recognized in California in the 1967 case of Custodia v. Bauer. ((1967) 251 Cal. App. 2d 303.) That case involved a suit against a physician for negligence in performing a sterilization procedure, resulting in the conception and birth of a healthy child, the plaintiffs' tenth. The court upheld the parents' right to bring the action, rejecting defendant's contentions that the plaintiffs had not suffered any legally cognizable injuries. The court refused to impose public policy limitations on the types of damages recoverable and held that ordinary tort principles of compensation for "all the detriment proximately caused" should govern.

In a wrongful birth action, the jury is entitled to offset against the damages suffered by the parents, the benefits conferred by virtue of the child's birth and the amounts chargeable to the parents under their duty to mitigate damages. Note, however, that the duty to mitigate damages does not require the parents to abort the fetus or place the child for adoption. (Morris v. Frudenfeld (1982) 135 Cal. App. 3d 23; Stills v. Gratton (1976) 55 Cal. App. 3d 698; Civil Code section 43.6 subd. (b): "The failure or refusal of a parent to prevent the live birth of his or her child shall not be a defense in any action against a third party, nor shall the failure or refusal be considered in awarding damages in any such action.). Civil Code section 43.6 subd. (a) prohibits a child from bringing a suit against its parent(s) based upon the claim that the child should not have been conceived or, if conceived, should not have been allowed to have been born alive.

Where the plaintiff claims negligence in the testing of the fetus, there must be at least a 50 percent chance that the fetus's defective condition would have been detected through the exercise of the applicable standard of care. (See Bromme v. Pavitt (1992) 5 Cal. App. 4th1487.) Thus, where there was a mere 20 percent chance that Down Syndrome would have been detected had an Alpha Fetoprotein test been performed did not establish a reasonably probable causal connection between the defendants' negligent failure to provide the AFP test and the plaintiffs' injuries. (Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696.)

Just as parents may not recover damages for loss of consortium when a child is injured (Baxter v. Superior Court (1977) 19 Cal. 3d 315), a child may not recover damages for loss of consortium when his or her parent(s) is injured. (Borer v. American Airlines, Inc. (1977) 19 Cal. 3d 441.)

Wrongful Life

A wrongful life action for special damages lies only where the defendant has failed to diagnose and warn the parents of the probability that a child will be born with a hereditary ailment or disability and the child is born with that ailment. California recognizes an impaired child's right to recover damages for "wrongful life" in certain circumstances. To date, this action has been allowed only in the case of a special relationship existing between the parent(s) and a health care provider, or where it involves a product manufacturer. The essence of a wrongful life action is that if the defendant had performed his or her job properly, the plaintiff-child would not have been born at all. Wrongful life is basically a form of a medical malpractice action.

The first case to address this issue was Stills v. Gratton ((1976) 55 Cal. App. 3d 698, which allowed the mother's suit for wrongful birth, but rejected the child's own claim for wrongful life. The court ruled that although the child was born out of wedlock and that "various reasons" affected him to his detriment, the child was "a healthy, happy youngster who is a joy to his mother whose only damages, if any, was in being born." The court noted the difficulty in awarding damages to restore the plaintiff to the position he would have occupied had the tort not occurred. Quoting a New Jersey case, the court commented: "'This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies.'" (55 Cal. App. 3d at 705-706, quoting Gleitman v. Cosgrove 227 A.2d 689, 692.).

Stills was followed by Curlender v. Bio-Science Laboratories ((1980) 106 Cal. App. 3d 811, disapproved in Turpin v. Sortini (1982) 31 Cal. 3d 220.) a wrongful life action claiming that the defendant laboratory was negligent in the testing of the child's parents for the specific purpose of determining whether either was a carrier of genes which would result in the conception and birth of a child with Tay-Sachs disease. In Curlender, the appellate court rejected the view that a child who is born with serious hereditary defects as opposed to not being born at all suffered no legally recognizable injury, stating that "[t]he reality of the 'wrongful life' concept is that such a plaintiff exists and suffers due to the negligence of others. ... [A] reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights." (106 Cal. App. 3d at 829.) On the issue of damages, the court held that the child could recover damages for the pain and suffering to be endured during the limited life span available to the child and any special pecuniary loss resulting from the impaired condition. However, the child could not recover any costs of care which its parents had recovered in a separate or consolidated action. The damages were not based upon the life expectancy of the child if born without Tay-Sachs disease (more than 70 years but were considered on the basis of the child's mental and physical condition at birth and his or her expected condition during its actual life span (e.g., four years).

In Turpin v. Sortini ((1982) 31 Cal. 3d 220.), the physician negligently advised the parents that their first-born child's hearing was within normal limits, when in fact she was completely deaf due to a hereditary ailment. The plaintiffs, unaware of this hereditary condition, then conceived a second child who was similarly affected. The Supreme Court disapproved Curlender and held that the child could not recover general damages, including pain and suffering, as "(1) it is simply impossible to determine in any rational reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born, and (2) even if it were possible to overcome the first hurdle, it would be impossible to assess general damages in any fair, nonspeculative manner." (31 Cal. 3d at 234-35.)

In Turpin, the Supreme Court did rule that the parents and child could recover the "extraordinary expenses" for medical expenses attributable to the impaired condition, as well as damages for specialized teaching, training, and hearing equipment that she would incur during her lifetime due to deafness. The court reasoned that, realistically, a defendant's negligence in failing to diagnose a hereditary ailment places a significant medical and financial burden on the whole family unit. Unlike the child's claim for general damages, the special damages in this case were both certain and readily measurable. The court concluded that those expenses may be vital not only to the child's well-being but to his or her very survival. Of course, the child cannot recover any damages for expenses recovered by the parents. (31 Cal.3d at 238.) "In sum, we conclude that while plaintiff-child in a wrongful life action may not recover general damages for being born impaired as opposed to not being born at all, the child - like his or her parents - may recover special damages for the extraordinary expenses necessary to treat the hereditary ailment. (31 Cal.3d at 239.)

In Andalon v. Superior Court ((1984) 162 Cal. App. 3d 600.), the appellate court held that Turpin's reasoning barred the child's claim for loss of earning capacity, stating: "There is no loss of earning capacity caused by the doctor in negligently permitting the child to be born with a genetic defect that precludes earning a living. One cannot lose what one never had. The plaintiff-child never had a wage-earning capacity that was taken away by the conduct of the doctor and cannot, therefore, claim compensation for its loss. His inability to earn wages is attributable to his genes and, for the present at least, it is meaningless to speak of a doctor altering or ameliorating the circumstance." (162 Cal. App. 3d at 614 (emphasis added).)