Dutch Supreme Court backs damages for child for having been born
http://www.100md.com
《英国医生杂志》
The Dutch Supreme Court has agreed to the award of damages to a severely disabled child for the fact that she was born—a so called wrongful life. This is the first such case in the Netherlands, and the decision sets it apart from international opinion.
Kelly Molenaar, now 11, was born with several mental and physical disabilities as a result of a chromosomal abnormality inherited through her father. Her mother had been aware of the genetic risks and had asked a midwife at the Leiden University Medical Centre whether prenatal diagnostic tests were necessary. She was told they were not, and neither was the case referred to a clinical geneticist.
Courts had earlier accepted that further tests would have revealed the abnormality and that the parents would have chosen a termination. They also accepted that the midwife made a professional mistake and, together with the hospital, is liable and that damages should be awarded ( BMJ 2003;326: 784).
Now the Supreme Court has reinforced the previous judgment that the damage suffered by Kelly and her parents was caused by the midwife's mistake and that they are entitled to compensation for material and emotional damage.
But it also accepted the wrongful life argument—and, therefore, that Kelly was entitled to compensation for emotional damage because of the fact she was born. This was a predictable consequence of the midwife's mistake by which Kelly's interests as an unborn child were contravened, it said.
The Supreme Court awarded all the costs of Kelly's upbringing and care, including those connected with her disabilities, and compensation for emotional damage suffered by Kelly and by both parents, as well as the cost of the mother's psychiatric treatment needed after the birth.
It stressed that in attributing emotional damage it did not imply that Kelly's existence was a source of suffering. Damages were based exclusively on the fact that the midwife made a serious mistake with regard to the fundamental rights of the parents and that this should receive recognition in compensation. Damages awarded against the hospital have not yet been set.
The Supreme Court denied that the judgment could lead to more defensive medical practice, arguing that the case is exceptional. The criterion for liability, it states, is whether the midwife can have been expected to act with "reasonable competence." It said that both the hospital and midwife accepted that there were shortcomings in this respect.
But Joep Hubben, professor of health law at Groningen University, said that the judgment leaves the Netherlands as a "legal island."
"Almost nowhere in the world would this claim be allowed," he said.
Courts in the United Kingdom and in Germany have rejected claims for wrongful life. Professor Hubben said that in Germany the court argued that claiming damages for the fact of living was "contrary to human dignity."
Professor Hubben and others are now calling on the Dutch government to forbid such cases, as happened in France after the case of Nicolas Perruche in 2001, when the courts also upheld a damages claim for "being born" ( BMJ 2001:323; 1384).(Tony Sheldon)
Kelly Molenaar, now 11, was born with several mental and physical disabilities as a result of a chromosomal abnormality inherited through her father. Her mother had been aware of the genetic risks and had asked a midwife at the Leiden University Medical Centre whether prenatal diagnostic tests were necessary. She was told they were not, and neither was the case referred to a clinical geneticist.
Courts had earlier accepted that further tests would have revealed the abnormality and that the parents would have chosen a termination. They also accepted that the midwife made a professional mistake and, together with the hospital, is liable and that damages should be awarded ( BMJ 2003;326: 784).
Now the Supreme Court has reinforced the previous judgment that the damage suffered by Kelly and her parents was caused by the midwife's mistake and that they are entitled to compensation for material and emotional damage.
But it also accepted the wrongful life argument—and, therefore, that Kelly was entitled to compensation for emotional damage because of the fact she was born. This was a predictable consequence of the midwife's mistake by which Kelly's interests as an unborn child were contravened, it said.
The Supreme Court awarded all the costs of Kelly's upbringing and care, including those connected with her disabilities, and compensation for emotional damage suffered by Kelly and by both parents, as well as the cost of the mother's psychiatric treatment needed after the birth.
It stressed that in attributing emotional damage it did not imply that Kelly's existence was a source of suffering. Damages were based exclusively on the fact that the midwife made a serious mistake with regard to the fundamental rights of the parents and that this should receive recognition in compensation. Damages awarded against the hospital have not yet been set.
The Supreme Court denied that the judgment could lead to more defensive medical practice, arguing that the case is exceptional. The criterion for liability, it states, is whether the midwife can have been expected to act with "reasonable competence." It said that both the hospital and midwife accepted that there were shortcomings in this respect.
But Joep Hubben, professor of health law at Groningen University, said that the judgment leaves the Netherlands as a "legal island."
"Almost nowhere in the world would this claim be allowed," he said.
Courts in the United Kingdom and in Germany have rejected claims for wrongful life. Professor Hubben said that in Germany the court argued that claiming damages for the fact of living was "contrary to human dignity."
Professor Hubben and others are now calling on the Dutch government to forbid such cases, as happened in France after the case of Nicolas Perruche in 2001, when the courts also upheld a damages claim for "being born" ( BMJ 2001:323; 1384).(Tony Sheldon)