Research On Tort Damage Liability For Breach Of Prenatal Examination And Diagnostic Notification Obligations

With the continuous improvement of people's quality of life in modern society,the concept of eugenics and nurturing and scientific nurturing has also been continuously improved.Pregnant women pay more and more attention to prenatal examination in order to avoid giving birth to children with congenital defects.The improvement of medical level has greatly reduced the birth rate of children with birth defects.Although our country actively promotes third-level prevention measures for birth defects,it is inevitable that medical personnel fail to fulfill their duty of care during prenatal examination,which infringes parents' informed right to choose and deprives the parents of the opportunity to terminate pregnancy.The birth of a child with defects causes the parents to suffer great material and mental pressure,so the parents filed a lawsuit for wrongful birth tort damages to protect their legitimate rights and interests.In recent years,the litigation of damages for infringement of wrongful birth in China has shown an increasing trend,but there has not been an effective handling mechanism for damages in such cases in China's judicial practice,and the imperfect legal system leads to the lack of uniform judgment standards for courts to follow,resulting in vastly different judgment results in the end.It is not conducive to the protection of the legitimate rights and interests of the families of children with defects,nor is it conducive to the realization of legal fairness and justice.This paper compares three typical cases of wrongful birth damages,and finds that the differences of judgment results in judicial practice mainly lie in three aspects: the constitution of tort liability,the subject of the right to claim damages,and the scope and limitation of damages.In the case of wrongful birth,the damage fact is not the birth of the defective child,but the negligence of the medical institution,which infringes on the parents' informed right to choose and causes the parents to lose the opportunity to choose to terminate the pregnancy,which brings material and spiritual damage.Informed right to choose is a kind of personality interest,and the second paragraph of article 990 of the Civil Code is a back-of-the-back clause to protect other new personality interests,which indicates that judges can confirm informed right to choose as the interest protected by law in judicial practice.In the case of wrongful birth damages,it should be clear that the causality is the causality between the negligence of the medical institution and the infringement of the parents' right to know,and the court should fully demonstrate the causality rather than relying too much on the fault participation in the appraisal opinion.The parents of the defective children are the subject of claim for damages,but the defective children are not the subject of claim for damages,because there are obstacles for the defective children to enjoy the qualification of claim in the aspects of causality and ethical policies.In the scope of compensation for damages,the court should support the medical expenses,nursing expenses and other special maintenance expenses and compensation for mental damage of the children with defects,and the general maintenance expenses should not be borne by the medical institutions.In addition,this paper argues that parents can claim damages for hedonic damages.On the limitation of damages,the court should combine the facts of the case to set off the profits and losses against the sales and negligence.