Netherlands Awards Damages in
April 15, 2003 11:18 AM   Subscribe

A court in the Netherlands has awarded damages to a severely disabled girl for having been born -- a so-called "wrongful life" judgment. While we discussed French suits like this a while back (1 2), this decision seems noteworthy because it allows the child herself to receive damages, not just the parents who must pay for her care. In my mind, that opens up a whole new can of worms, both in terms of the message it sends and the incentives for doctors that it creates.
posted by boltman (12 comments total)
Before everyone freaks out, please make sure you read the story first.

The midwife clearly messed up.
posted by pjdoland at 11:22 AM on April 15, 2003

Damages against the hospital amounting to the cost of Kelly's care and upbringing until her 21st birthday were awarded to her parents.

Thats reasonable. We need to take care of our own. It's the multi-million settlements that make it a farce.
posted by stbalbach at 11:24 AM on April 15, 2003

I'm tempted to say something bitter like "I'm sure the money will make things all better for her," but on second thought I'm not so sure. Money for treatment in the face of an obvious screwup is one thing, but how can you possibly set a price for her suffering - let alone her life? Sounds like using money to assauge guilt.

That said, I know quite a few asshats who would by this logic should be zillionaires.
posted by gottabefunky at 11:30 AM on April 15, 2003

boltman: why did you change the phrase in the linked page, "wrongful birth", to "wrongful life"?
posted by goethean at 11:32 AM on April 15, 2003

"Kelly's parents had informed a midwife at the Leiden University Medical Centre that a relative of the father was disabled because of a chromosomal abnormality. But the midwife reassured them and did not carry out further prenatal diagnostic tests or refer the case to a clinical geneticist. "

My sympathies are with Kelly and her parents, but there's one nagging question: Why didn't the parents get a second opinion? Clearly, they were aware of the genetic possibility of having a child born with a chromosomal abnormality or they woud not have mentioned it to the midwife. If I had any doubts that my unborn child would be born with a debilitating genetic condition, you can bet I'd get testing done even if my trusted doctor told me it wasn't necessary.

The parents bear some responsibility for her condition, as well, as the midwife.
posted by VelvetHellvis at 11:35 AM on April 15, 2003

Oh, I read further and found the reference to "wrongful life". Disregard previous post, pleeease.
posted by goethean at 11:37 AM on April 15, 2003

Must be the Netherlands' day to have odd legal decisions, since the news of Pim Fortyn's killer's sentence just came out as well. A whole 18 years, out in 11 with good behavior, for premeditated murder.
posted by billsaysthis at 11:38 AM on April 15, 2003

stbalbach: In a society in which abortion is permissible, a persuasive argument can definitely be made that damages to the parents are reasonable. However, the part of the article that I found to be more disturbing is:

But the court went further, ruling that Kelly herself was liable to damages. The court judged that the damage experienced by Kelly was in a legal sense a predictable consequence of the midwife's mistake.

It seems to me that the court is basically saying that Kelly has been harmed by her own existence, i.e. it would have been better for her to not have been born. People like Peter Singer take exactly that view of people with disabilities, but as this thread demonstrated, that view is certainly open to vigorous debate.
posted by boltman at 11:46 AM on April 15, 2003

although personally I don't think that even parents should be able to collect damages for wrongful birth because of the perverse incentive it creates for doctors
posted by boltman at 11:54 AM on April 15, 2003

And they tell us the Jews curbed infanticide in Ancient Roman society. Maybe if they had let Jesus live and simply chosen an alternative for the sickle. . .
posted by The Jesse Helms at 12:48 PM on April 15, 2003

Why didn't the parents get a second opinion?

Exactly what I was wondering. It may be different in the Netherlands, but to my knowledge midwives are not genetics experts, they're childbirth and pre- and post-natal care experts. Their jobs do not usually involve genetics counselling. It seems at least remotely possible to me that the parents are passing the buck to some extent by putting all the blame for this on the midwife. She certainly should have advised them that she wasn't an expert in genetics, but asking a midwife about genetics seems to me to be like asking a mechanic about automobile assembly line computers.
posted by biscotti at 12:56 PM on April 15, 2003

I don't know what to make of this case, and I feel terrible for Kelly. I am curious, though, just how predictable or severe the suffering must be to win such cases. I mean, a quick glance around tells me that there's a damn good chance that any kid born today is going to have a pretty rough time...and I'm fairly certain my own parents could have predicted my current existential dilemmas. The doctors would also have been able to determine with reasonable certainty that I'd be shorter than average and would receive much teasing at the hands of my classmates. Would my counselling expenses be recoverable?
posted by dilettanti at 8:39 PM on April 15, 2003

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