Study On The Scope Of Damages For "Wrongful Birth"

"wrongful birth" also called " improper birth",originated from the United States,is an abstract summary of the judicial practice in the case of damages.It refers to the prenatal diagnosis,because the medical institutions or medical personnel exist medical negligence,failure to detect fetal abnormalities,or misinformed,resulting in the birth of a defective child,thereby causing damage to parents,a type of case in which the parents seek damages from a medical institution for this purpose.As a special relationship of compensation for damage,the compensation for "wrongful birth" which belongs to the category of medical compensation,has its special elements and social functions.As there is no clear and specific regulation on the issue of "wrongful birth" damage compensation in the relevant laws and regulations of our country at present,people's understanding of the issue of "wrongful birth" damage compensation is quite different in practice,especially in the "wrongful birth" of the scope of damages obviously controversial.In recent years,the judgment of "wrongful birth" damages cases in our country has found that the scope of damages for "wrongful birth" varies from court to court.How to determine the scope of "wrongful birth" damages? What are the principles governing the scope of damages? How to determine the subject scope of the right of claim for damages? Are All the compensation items that the plaintiff has requested supported? How to calculate the amount of compensation for each compensation item the plaintiff claims?As for the applicable principle of compensation for damage caused by "wrongful birth",the judge adopts the principle of compensation for negligence in judicial practice in China.However,the single consideration of fault factors can not balance the interests between parents and medical institutions,the original compensation principle is facing a test.The emergence of proportional liability,by comparing the fault between the parents and the medical institutions,comparing the causes,etc.so that the parents and the medical institutions share the responsibility in proportion,just can solve this problem.Regarding the subject of the right of claim,strictly distinguish two different cases of "wrongful birth" and "wrongful life",the parents are thesubject of the right of claim in the case of "wrongful birth" damages,the defective child is the subject of the right of claim in the case of "wrong life" damages.As for the items of compensation for damages,the medical negligence of doctors brings great losses to the parents in property and spirit,and medical institutions should bear the responsibility of compensation for damages.On property,the Medical Institution shall compensate for the pregnancy expenses incurred after the medical negligence and the special maintenance expenses for the defective child,including the special medical expenses,the special care expenses and the special education expenses;For the suffering of the parents,the medical institution needs to pay appropriate compensation for the mental distress.As for the calculation of the amount of damages,this article puts forward a specific calculation method for each item of compensation for property damage,and then adds up the property losses suffered by the plaintiff,and then bear the respective proportion of liability;The calculation of the mental comfort money needs to set a maximum amount of compensation,in the scope of the maximum amount of compensation considered as appropriate.