Continuing on from our discussion yesterday, medical malpractice, like any other negligence tort, is proven by showing:

(1) the defendant had a duty to the plaintiff to act a certain way,

(2) that the defendant breached that duty,

(3) that the defendant’s breach caused the plaintiff harm and

(4) that the harm caused is compensable under the law.

In most medical malpractice cases, the first element (the duty) is undisputed: every doctor has a duty to provide appropriate professional care and treatment to their patients. Similarly, the fourth (the harm) is usually not denied, though the defense will raise questions about the degree of harm actually suffered, particularly where significant non-economic damages (a.k.a., “pain and suffering”) are alleged.

In most medical malpractice cases, the fight is over whether the standard of care was breached and whether that breach actually caused the patient’s harm. The latter is sometimes the biggest issue in wrongful death cases, with the defense lawyer arguing that, even if the doctor had not been negligent, the patient still would have died.

The octuplets are different. There’s no question about the second element: the doctor very clearly breached the standard of care by transferring so many embryos through IVF. There’s also little question about the third element: the octuplets’ obstetrical and neonatal care appears to have been impeccable, so any birth injuries (or fetal or neonatal injuries) they suffer were likely caused by the multiple gestation and resulting placental insufficiency and premature birth.

As noted previously, the fourth element is up in the air – they’re all reportedly in good health – but a simple fact of neonatology and pediatrics is that problems can develop months or years down the line. Bronchopulmonary dysplasia, cognitive delays, and cerebral palsy are all very common among premature babies, even those with “normal” NICU courses.

Which leaves us with the first element: did the doctor who transferred those embryos have any duty to the resulting children?

Most of the cases brought arising from IVF revolve around either a failed attempt to prevent or terminate the pregnancy or a fertility clinic’s failure to screen the embryo for genetic defects. In each of those cases, courts have found that the ‘wrongfully born’ child has no claim against the clinic. But let’s take a careful look at what the “wrongful life” laws really prohibit. Here’s Pennsylvania’s statute:

WRONGFUL LIFE.– There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.

42 Pa.C.S. § 8305. Yet, as noted last time, that’s not what the octuplets would claim here. There was no attempt or desire to terminate any of them; the problem is that they were gestated in an unsafe manner, not that they should not have been transferred through IVF or gestated or born. They would not be claiming that they should have not been transferred through IVF or should have been aborted, but that one or more of their siblings should have been.

I have not found any cases raising that theory; the law here is anything but settled. To determine if a court would find such a duty, we can turn to that old war horse of law school classrooms, Tarasoff, cited by courts across the country for the factors to be weighed in establishing a legal duty:

[T]he foreseeability of harm to the plaintiff,

the degree of certainty that the plaintiff suffered injury,

the closeness of the connection between the defendant’s conduct and the injury suffered,

the moral blame attached to the defendant’s conduct,

the policy of preventing future harm,

the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and

the availability, cost and prevalence of insurance for the risk involved.

Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 435 (1976). As Tarasoff continued, “The most important of these considerations in establishing duty is foreseeability. As a general principle, a defendant owes a duty of  care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous."

There’s no doubt of the foreseeability of the danger of transferring eight embryos, and no doubt of the moral, policy and community reasons for recognizing a legal duty. As noted by Dr. Thomas H. Murray, a bioethicist, the American Society for Reproductive Medicine acknowledged in a 2004 report that fertility programs may withhold services when they can provide "well-substantiated judgments" that the child will not receive adequate care, and to exercise such judgment particularly" when significant harm to a future child is likely." A professional duty is thus recognized, so why not a legal one?
Yet, in another sense, permitting the octuplets to claim that each other should not have been born raises similar philosophical problems as “wrongful life:”
for example, who is to say which sibling should have not been born, and how many? Pennsylvania’s case law on “wrongful life” – a split Supreme Court, which prompted the statute above – gives us a forceful example of how courts (and lawyers) can cut such Gordian knots:

It is undoubtedly true, as a review of the cases on this subject indicates, that legal scholars are able to cite numerous theories and reasons to support the view that recovery must be defeated in all cases of this type, and therefore that courts should not even entertain such complaints. The view that we cannot calculate the value of existence as compared to nonexistence is only one such hyper-scholastic rationale used to deny a cause of action in these cases. Those holding such views are apparently able to overlook what is plain to see: that — in cases such as this — a diseased plaintiff exists and, taking the allegations of the complaint as true, would not exist at all but for the negligence of the defendants. Existence in itself can hardly be characterized as an injury, but when existence is foreseeably and inextricably coupled with a disease, such an existence, depending upon the nature of the disease, may be intolerably burdensome. To judicially foreclose consideration of whether life in a particular case is such a burden would be to tell the diseased, possibly deformed plaintiff that he can seek no remedy in the courts and to imply that his alternative remedy, in the extreme event that he finds his life unduly burdensome, is suicide. No court in the land would directly send such a message to these plaintiffs. We deem it unfortunate that some courts have indeed sent that message by implication.

Speck v. Finegold, 497 Pa. 77, 87 (1981, Flaherty, J., concurring).

The irony here is that, while the mother may bear some fault for these circumstances, her claim is far more simple, and more likely to prevail, than her children’s claims. Indeed, the parents in the original “wrongful life” case, Becker v. Schwartz, were permitted to claim damages arising from the cost of care and treatment of their child, although not damages for noneconomic and emotional harm. Recall what I wrote above: every doctor has a duty to provide appropriate professional care and treatment to their patient, here the mother, if maybe not the children.

[Here’s Part 1, see also Can a Patient Consent to Medical Malpractice? (A Followup on the Octuplets)]