Keel v. Banach: Alabama Gives Life to Wrongful Birth Actions - Should We Sue for Malpractice
![handle is hein.journals/cumlr24 and id is 559 raw text is: COMMENTS
KEEL V. BANACH:
ALABAMA GIVES LIFE TO WRONGFUL BIRTH ACTIONS.
SHOULD WE SUE FOR MALPRACTICE?
Years ago our teachers told us the world was getting better ....
They said, Certainly the world is getting better. They cited the
proofs. We are able to cure rabies and control diabetes and other
diseases. We are able to do so many things that we were never able
to do before.
But one little thing has been overlooked in their preoccupation
with our wonderful new ability to take the forces of nature and
harness them. Our scient/ifc and intellectual advances were not accompa-
nied by similar moral strides. ... Technology, instead of making us
morally better, has been accompanied by a time of moral disintegration.'
I. INTRODUCTION
In the past several decades the medical and scientific
communities have witnessed extraordinary advancements in
technology. Accompanying this growth has been a correspond-
ing rise in our efforts to lay blame for life's vicissitudes at the
feet of others. Nowhere is this more evident than in birth-
related causes of action, in which children, parents, or both,
bring action primarily against their physician for injuries
associated with the birth process.
A trio of birth related torts are among those spawned by
the new technology: so-called wrongful life, wrongful
pregnancy (or wrongful conception), and wrongful birth.2
Wrongful life is an action brought by or on behalf of a de-
formed child, alleging that but for the doctor's negligence in
performing or failing to perform genetic testing and counsel-
ing, the child would not have been born to experience a
defective existence.' Wrongful pregnancy (or wrongful concep-
A.W. TOZER, FArrH BEYOND REASON, 122-24 (1989). (emphasis added)
2 R. Keith Johnston, Medical Malpractice and Wrongful Birth. A Critical Analysis of
Wilson v. Kuenzi, 57 UMKC L. REV. 337 (1989). Most commentators would only credit
technology with giving rise to the wrongful life and wrongful birth causes of action
because they both predicate liability on the failure to diagnose genetic defects using
genetic testing and prognostication devices. Wrongful pregnancy involves somewhat
more basic medical knowledge.
I Id. at 338. Alabama does not recognize wrongful life. Elliot v. Brown, 361 So. 2d 546
(Ala. 1978). Plaintiffs in wrongful life actions [don't] claim that the defendant's alleged
preconception negligence caused [the] deformity. Elliot, 361 So. 2d at 547. Instead,
plaintiffs claim defendant's alleged negligence caused [the] birth. Id. The theory is](ViewImageLocal?handle=hein.journals/cumlr24&div=35&collection=&method=preview&ext=.png&size=3)
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Keel v. Banach: Alabama Gives Life to Wrongful Birth Actions - Should We Sue for Malpractice
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