When Life Is an Injury: An Economic Approach to Wrongful Life Lawsuits

Duke Law Journal, Dec 2003

Thomas A. Burns

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When Life Is an Injury: An Economic Approach to Wrongful Life Lawsuits

WHEN LIFE IS AN INJURY: AN ECONOMIC APPROACH TO WRONGFUL LIFE LAWSUITS THOMAS A. BURNS Can life be an injury? Jurists, theologians, and philosophers have spilled much ink over this question.1 Wrongful birth and wrongful life lawsuits are frequently debated in courts and academic circles. In broad overview, wrongful birth lawsuits are prenatal negligence suits brought by the parents of a deformed or retarded child against a doctor who negligently failed to diagnose or inform the parents about potential birth defects. Wrongful life lawsuits, on the other hand, are prenatal negligence suits brought on behalf of the deformed or retarded child against a doctor who negligently failed to diagnose or inform the child's parents about potential birth defects. Generally, courts dismiss wrongful life lawsuits because they fail to perceive that 1. See, e.g., Becker v. Schwartz, 386 N.E.2d 807, 812 (N.Y. 1978) (“Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and theologians.”); AUGUSTINE, THE ESSENTIAL AUGUSTINE 70 (Vernon J. Bourke ed., 1974) (arguing that understanding is more excellent than merely living or existing, because “even a stone exists, and a beast lives, yet I do not think that a stone lives, or that a beast understands[, b]ut he who understands assuredly both exists and lives”); DAVID HUME, On Suicide, in FOUR DISSERTATIONS; AND, ESSAYS ON SUICIDE AND THE IMMORTALITY OF THE SOUL 1, 21 (photo. reprint 2000) (1783) (“I believe that no man ever threw away life, while it was worth keeping.”); FRIEDRICH NIETZSCHE, THE GAY SCIENCE § What, if some day or night a demon were to steal after you into your loneliest loneliness and say to you: “This life as you now live it and have lived it, you will have to live once more and innumerable times more; and there will be nothing new in it, but every pain and every joy and every thought and sigh and everything unutterably small or great in your life will have to return to you, all in the same succession and sequence . . . .” Would you not throw yourself down and gnash your teeth and curse the demon who spoke thus? Or have you once experienced a tremendous moment when you would have answered him: “You are a god and never have I heard anything more divine.” Note DUKE LAW JOURNAL [Vol. 52:807 the child has suffered any legally cognizable injury: had the doctor not been negligent, the child would not exist. This Note contends that wrongful life lawsuits should be cognizable because, when viewed through an entitlement model, they have the same economic consequences as wrongful birth lawsuits. To achieve this end, injury in wrongful life lawsuits should be conceived of as a financial injury to the individual child. When injury is thus conceptualized in a narrow, economic sense, the nonexistence paradox—comparing injured existence to nonexistence—dissolves. This reconceptualization would justify awarding special damages for medical costs and any punitive damages to the child, but would forbid recovery of general damages for pain, suffering, and emotional distress. Currently, three courts have reached this result intuitively.2 However, these three courts explicitly ignored the nonexistence paradox, essentially admitting that they preferred an approach of fairness.3 This Note resuscitates their conclusion via economic analysis by explaining that, in fact, not only is their conclusion both just and fair, it also comports with leading economic theory. Thus, to answer the opening question, life can be a compensable injury. To this end, Part I elucidates wrongful life and wrongful birth, and introduces the nonexistence paradox. Part II examines the watershed cases of wrongful life and wrongful birth jurisprudence. Part III reviews the wrongful life literature and explains why attempts to circumvent the nonexistence paradox have failed. Part IV introduces the entitlement framework. Part V applies the entitlement framework to wrongful life claims and redefines injury. I. PRENATAL NEGLIGENCE BACKGROUND Wrongful life and wrongful birth are the latest developments in prenatal negligence jurisprudence. Initially, in the late 1960s, American law recognized neither parents’ wrongful birth claims nor children’s wrongful life claims.4 Within ten years, however, the law began 2. See infra Part II.F. 3. See Procanik v. Cillo, 478 A.2d 755, 772 (N.J. 1984) (Schreiber, J., dissenting) (“Once one acknowledges, as the majority has, that the child has no cause of action for general damages stemming from wrongful life, it is unfair and unjust to charge the doctors with the infant’s medical expenses.” (citation omitted)); infra notes 86–88 and accompanying text; infra note 95 and accompanying text. 4. Gleitman v. Cosgrove, 227 A.2d 689, 692, 693 (N.J. 1967) (holding that a child could not state a claim for wrongful life, and that his parents could not state a claim for wrongful b (...truncated)


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Thomas A. Burns. When Life Is an Injury: An Economic Approach to Wrongful Life Lawsuits, Duke Law Journal, 2003, Volume 52, Issue 4,