Prenatal Diagnosis Of Mistakes Damage Liability

With the aid of prenatal tests,physicians can now detect the fetus' health condition during pregnancy.It is a common practice to take prenatal tests to have a health child nowadays.However,many infants are still born with congenital defects every year.It is because that some physicians carry out the prenatal tests negligently,so that infants' congenital diseases can't be discovered.Therefore the parents and the children sue the physicians for compensation due to their negligence.While,whether to compensate or not becomes a dilemma for the hospital,when the babies are born.This type of case has a long history in some foreign countries,as a result, there are mature related theories and studies.And the number of these cases is getting bigger and bigger in China in the recent years,which attracts more attention.The media,for example,reports that parents whose babies born with congenital diseases sue the physicians for their negligence,which is believed to be the reason for procreating infants with congenital diseases.Sadly,there are not enough domestic researches or studies on these cases.As a result, parties and lawyers have very different understandings on these cases.Also, different courts handle these cases differently.This conflicts with the spirit of civil law that citizens' rights should be protected equally.This dissertation is therefore written to offer some reference for similar practices according to reference from some related foreign theories and cases as well as analysis on these cases under the present situation in China.This dissertation consists of the foreword,the main body which is divided into five sections and the conclusion.The foreword introduces the profound meaning and also the scope of studying these cases.SectionⅠexpounds the studies on these cases by the Britain,United Sates,Germany and France.These cases are catalogued into "wrongful birth" and"wrongful life" in Britain and United States.A "wrongful birth" is a claim for relief by parents who allege they would have terminated a pregnancy but for the negligence of those charged with prenatal testing,genetic prognosticating,or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child.The issue of wrongful life brought up by the child on its own behalf is also considered by the Court.The majority of jurisdictions permits recovery for wrongful birth,but does not permit recovery for wrongful life.There are two types of Anspruchsgundl-ages,liability for breach of contract and liability for tort.Claims for damage compensation raised by plaintiff parents are commonly supported by courts,while claims raised by plaintiff children are usually declined.SectionⅡexpounds the analysis of cases happened under domestic situation.Elements of compensation liability are disputed,especially the damages and causation,except medical malpractice.Anspruchsgundl-age and the scope of compensation are also controversial.SectionⅢsets forth the analysis on Anspruchsgundl-age of the case.It is found that Anspruchsgundl-age of the case based on tort liability is better, because plaintiffs can recover more compensations,more victims can sue the physicians for compensation and onus probandi is same.The case is foremost a claim for medical negligence.SectionⅣsets forth the proving of elements of compensation liability, including actual damage and causation.It is found that the birth of a seriously deformed child results in damage to the child's parents.The 'right' of termination and the right to determinate procreation of a healthy child are deprived.There isn't a damage to the child's right,therefore cannot get compensation for damage from courts.Since the birth defect usually pre-exists the malpractice,courts find no causation between the malpractice and the defect.Rather,the "damage" or "injury" caused by the doctor's negligent failure to detect the genetic defect is the resulting the right to terminate and the right of determination of procreation of a healthy child being deprived,with the attendant upspring expenses,extraordinary expenses,pregnancy expenses and mental and distress.Such damage or injury would allegedly have been avoided but for the malpractice.It is found the medical negligence causes injuries of depriving of the 'right' of termination and the right to determinate procreation of a healthy child and the medical negligence causes the monetary expense and extreme mental and emotional distress for plaintiffs.SectionⅤsets forth the analysis on the scope of compensation.The thesis follows the conclusion that court should allow not only the recovery of the additional costs of treatment and Special resources for the child,but also the entire cost of rearing the child and pregnancy.The extraordinary expenses the plaintiffs are entitled to recover are those incurred because of the child's unhealthy condition,including hospital and medical costs,medication,and education and therapy.It is also found damages for emotional distress suffered by the parents are recoverable.It is also a basic rule of tort compensation that any benefit should be offset against the damages award.The joys and benefits of having a defective child,should offset distress of having the child,but should not offset upspring expenses,extraordinary expenses and pregnancy expenses.In addition,the damages can't offset the benefits of social welfare, because compensation isn't the function of the social welfare.Contributory negligence means on occurrence or expansion of damage,the liability for compensation of the injuring party should be diminished or remitted when the injured party has negligence.In the prenatal tests,the part of reason that the congenital defects can't be detected is that injured party conceals the information to their physicians when he(she) answers the physicians' questions or not do what the physicians tell to them.The liability for compensation of the hospital should diminish because of the injured party's negligence.The last section is the conclusion,where the writer states her own opinions on the liability for damages in the case and elaborates the social meaning of permitting the liability for damages in the case.