While numerous courts have recognized the right of parents to maintain a cause of action for wrongful birth grounded in medical malpractice, the same courts have steadily refused to recognize a child's right to maintain a parallel cause of action for wrongful life. Recently, in Turpin v. Sortini, the California Supreme Court became the first high court of any state to recognize a child's right to maintain a wrongful life action based on medical malpractice. In resolving conflict between lower courts, the California Supreme Court constructed a theory of wrongful life that was based upon medical malpractice, drawing upon traditional theories of tort liability, current commentary of legal scholars concerning wrongful life actions, and recent decisions having a bearing upon the case. This Note analyzes Turpin in light of the traditional tort elements of duty, breach, causation, and damages. Consideration is also given to current policy arguments both supporting and opposing recognition of a cause of action for wrongful life. In light of these considerations, the court properly found that a cause of action should lie for wrongful life based upon medical malpractice and that monetary damages are an appropriate remedy for a plaintiff-child. However, the court did not decide correctly in refusing to allow general damages to a plaintiff-child for being born impaired as opposed to not being born at all and in limiting the damages recoverable to extraordinary expenses necessary to treatment of the hereditary ailment.
David G. Dales,
Wrongful Life: New Cause of Action Recognized Based upon Medical Malpractice Theory: Turpin v. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982),
62 Neb. L. Rev.
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