Posted by David Bernstein: Craziest Tort Ruling Yet Issued by a State Supreme Court: http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118442807
My nominee, not surprsingly, is from New Jersey (which provides several other candidates), [1]Canesi ex rel. Canesi v. Wilson 158 N.J. 490, 730 A.2d 805 (1999). Mother takes Provera during pregnancy. PDR tells physician to warn mother about possibility of congenital defects, including limb reduction defects. Doctor negligently fails to warn. Mother gives birth. Baby has limb reduction defect. Scientific evidence shifts. Evidence accumulates that Provera does not cause limb reductions. PDR drops warning. Mother sues doctor for "wrongful birth." None of mother's experts is willing to testify that there is any relationship between Provera and limb reduction defects. New Jersey Supreme Court nevertheless holds that mother should be able to recover the costs of raising her baby, because she likely would have aborted the baby had she been informed of the risks from Provera. The majority claims that it would not approve the award of damages to a mother not apprised of a risk "completely unrelated" to the damage suffered by her baby, but they never explain why. If a mother can claim damages for not being warned of a limb defect not in fact caused by Provera, simply because other congenital defects are caused by Provera, why shouldnāt the mother be able to claim damages for, say, not being warned about a genetic risk of Tay Sachs when her baby was born with Spina Bifada? In either case, the mother might have aborted the baby if she had been informed of the risk, and in either case, the harm was ultimately not related to the risk not warned against. The majority and the concurrence suggest that the risk of limb defects from Provera is "not proven" not "nonexistent," but they provide no evidence that disputes the dissentās contention that Provera does not cause limb defects. Justice Pollock, dissenting, sums things up well: "Under the majority opinion, the parents of a child born with congenital defects may maintain a wrongful birth action against physicians who failed to warn the mother of the potential adverse effects of a drug that did not cause the defects. The import of the holding is that the parents need not prove that the drug was the proximate cause of the birth defects that give rise to the action. All the mother need prove is that she would have aborted the fetus if apprised of potential risks, even if the risks never materialized." I'm currently writing an article responding to a piece that actually praises Canesi as a model decision. References 1. http://lw.bna.com/lw/19990706/a4697.htm _______________________________________________ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
