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23 Ind. L. Rev. 753 (1990)
Pay Me Now or Pay Me Later: The Question of Prospective Damage Claims for Genetic Injury in Wrongful Life Cases

handle is hein.journals/indilr23 and id is 765 raw text is: Pay Me Now or Pay me Later?: The Question of
Prospective Damage Claims For Genetic Injury in
Wrongful Life Cases
Melanie Meredith, a profoundly retarded adult lacking any muscle
control, became pregnant as the result of being raped by another patient
of Riverview nursing home where she resided.' Her condition remained
undetected for approximately five months.2 During this time, she re-
ceived no prenatal care and remained on a regular regimen of the drug
Dilantin.3 She gave birth to a son, Jacob.4
In August of 1989, Jacob became the first person in Indiana to
successfully state a claim for wrongful life.5 Wrongful life actions are
brought by, or on behalf of, a child who suffers some impairment
associated with his life. The child alleges that the defendant's negligence
led to his birth. Generally, children bringing wrongful life actions suffer
severe congenital defects.6 The suits typically name a health care pro-
vider who negligently fails to inform or misinforms a prospective parent
of the risks associated with bearing the child.7 For example, a doctor
1. Cowe by Cowe v. Forum Group Assoc., 541 N.E.2d 962, 964 (Ind. Ct. App.
2. Id. at 967.
3. Id. When taken during pregnancy, Dilantin, an antispasmodic, induces changes
in the fetal genetic structure resulting in a variety of birth defects including both physical
deformities and mental deficiencies. This is known as Fetal Hydantoin Syndrome. See
Hunson & Smith, The Fetal Hydantoin Syndrome, 87 J. PEDIATIUcs 285 (1975).
4. Id. at 964.
5. Initially, the tort of wrongful life must be differentiated from the closely related
torts of wrongful conception, wrongful pregnancy and wrongful birth. Both
wrongful conception and wrongful pregnancy claims are brought after a negligently
performed sterilization or failed contraceptive leads to the birth of an unplanned, but
healthy child. This action belongs to the parents who can recover damages to compensate
for the costs associated with pregnancy and delivery of the child. See, e.g., Garrison v.
Foye, 486 N.E.2d 5, 7 (Ind. Ct. App. 1985).
6. See, e.g., Harbeson v. Parke-Davis, 98 Wash. 2d 460, 656 P.2d 483 (1983)
(Fetal Hydantoin Syndrome); Turpin v, Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal.
Rptr. 337 (1982) (total deafness); Procanik by Procanik v. Cillo, 97 N.J. 339, 487 A.2d
755 (1984) (Congenital Rubella Syndrome); Berman v. Allen, 80 N.J. 421, 404 A.2d 8
(1979); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 872, 413 N.Y.S.2d 895 (1978);
Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 479 U.S. 835
(1986), reh'g denied, 319 N.C. 227, 353 S.E.2d 401 (1987) (children born with Down's
syndrome); Goldberg v. Ruskin, 113 111. 2d 482, 499 N.E.2d 406 (1986) (Tay-Sachs disease);
Speck v. Finegold, 286 Pa. Super. 342, 408 A.2d. 496 (1979); Park v. Chessin, 60 A.D.2d
80, 400 N.Y.S.2d 110 (1977) (polycystic kidney disease); Gallagher v. Duke Univ., 638
F. Supp. 979 (M.D.N.C. 1986) (Trisomy 9); Bruggeman v. Shimke, 239 Kan. 245, 718
P.2d 635 (1986) (multiple congenital abnormalities).
7. See supra note 6.

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