错误的出生与生命所形成的医疗法律问题.pptVIP

錯誤的出生與生命所形成的醫療法律問題 台北市立聯合醫院中興院區 李壽星 October 24, 2009 Introduction wrongful birth: 子女將怪父母把他生下來。 wrongful life: 怪自己命不好。 wrongful gene: 怪基因不好。 Wrongful Birth Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. Wrongful Birth The elements of a wrongful birth claim the existence of a patient-doctor relationship between the defendant and the plaintiff; the doctor negligently failed to disclose to the prospective parents the risk of having a child with a genetic or congenital disease; the plaintiff suffered harm; and the doctor’s negligence caused that harm. Wrongful Life A Wrongful Life action is conceptually similar to a wrongful birth action. In a wrongful birth action, parents seek damages for a child born with birth defects. In a wrongful life action, the child seeks damages for being born with a birth defect rather than not being born. Keel v. Banach the plaintiffs were a man and his pregnant wife, who both sought to avoid having a child with genetic or developmental abnormalities. The defendant was an obstetrician who performed several sonograms on the woman and her developing fetus. The defendant did not detect any abnormalities and assured the parents that their child was developing normally. However, the child was born with a variety of severe congenital abnormalities, requiring multiple surgeries. The child died at the age of six. Keel v. Banach The parents sued on a theory of wrongful birth. The court ruled “the parents of a congenitally defective child may maintain an action for its wrongful birth if the birth was the result o