By comparing the English approach with the Australian approach towards the wrongful conception or pregnancy cases due to medical negligence, this can be distinguished with respect to the case of Cattanach v Melchior. In contrast with the McFarlane case, which only allows the recovery of damages for the disabled child, the Melchior case could allow the damages to be awarded for the costs of fostering a healthy child. Besides, in Dahl v Purnell, Deputy chief justice Pratt allowed damages for pre-natal distress, the pain and suffering of the birth, the past and future costs of bringing up the child, out of pocket expenses in the form of amounts expended on maternity clothes and medical expenses. This made a stark contrast with the McFarlane …show more content…
Moving on to the next part, it will be generally focusing on the health status of the child, whether the unwanted child is healthy or disabled will affect the result of the outcome of the decision. There are different stages for the evolution of the court decisions towards the wrongful conception cases, which are the Pre-McFarlane (early) case law, the McFarlane case law and the subsequent McFarlane case law respectively. Although the McFarlane case can set out the line for claimants to claim for compensations, there is always a distinction between the decisions from the healthy child and the disabled child. Prior to the McFarlane case , Udale v Bloomsbury Area Health Authority is the prominent case for medical negligence on wrongful conception on the resultant of an unwanted healthy child. Seen in this light, claims for bringing up a child is usually being awarded before the McFarlane case was established. Due to the failure in sterilization, the woman gave birth to a healthy child. The court …show more content…
Looking into the leading case of McFarlane v Tayside Health Board, which is focusing on a resultant of an unwanted but healthy child. The wife became pregnant and gave birth to an unwanted healthy child due to the failed vasectomy of her husband. There are mainly two claims for the damages, which are the physical discomfort from her pregnancy and delivery and the costs associated with bringing up their healthy child. However, under the ruling by the House of Lords, only the former claim can be redeemed but not for the latter one as it would not be “fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child”. Moreover, looking into another case on Parkinson v St James and Seacroft University NHS trust, which is focusing on the resultant child as a disabled one. Due to the claimant underwent a negligently performed laproscopic sterilization, the child was born disabled. Under such circumstance, compensation was only awarded for the for the special need of the child or the needs in
Thomson provides the example of being hooked up for nine months to provide dialysis to an ailing violinist to expose how a fetus’s right to life does not supersede a mother’s right to make medical decisions about her body (48-49). I find that this thought experiment especially helpful in understanding how even though a fetus does have a right to life, because the continuation of their life hinges on the consent of their mother to use her body, it falls to the mother to choose whether or not to allow the fetus to develop to term.
Kemp, Joe. A. “Fetus of pregnant, brain-dead Texas woman ‘distinctly abnormal’: lawyers.” NYDailyNews. New York Daily News. 23 Jan. 2014.
A recent Court of Appeal ruling looked at preimplantation and IVF selection and how it was possibly going to be prohibited in the UK. Therefore, there are many factors that need to be discussed to whether or not it should be outlaw...
Wrongful conception is a claim that the conception of a child is due the negligence of medical professionals to prevent said conception through proper sterilization techniques and contraception. This claim is generally not related to the results of whether the child is born healthy or not, but more so, on the claim that had the doctor or pharmacist taken the correct measures to assist in the prevention of conception, the individual would not have gotten pregnant. “As with other types of injury cases, a couple can seek compensation for the cost of the failed procedure, pregnancy costs, pain and suffering, lost wages, and loss of consortium” (Steffen, 2011, http://www.seolawfirm.com/2011/12/wrongful-conception-concerns-raised-when-errors-occur-during-ivf-and-pgd-testing/).
...d, ‘so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect than an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged’. This approach was later applied in Merton LBC v K .
...or equitable treatment in some regions and cultures. Another convoluting factor for legislature involves pregnancy. Fetal rights are still undefined, and must be considered in direct relation to the rights of the parents, particularly the mother’s health rights.
Sue Axon, from Manchester, is a mother of five children who filed an amendment over the Department of Health’s updated guidelines in the High Court in 2006. The focus of her action is to honor the rights of the parents over their children in terms of having an abortion and taking contraceptives. She stated that the guidelines given by the Department of Health undermines the roles of parents (BMJ Publishing Group, 2005). Mr. Axon’s attempt failed. Mr. Philip Sales said that implementing the “right to know” of parents will result to discouragement of young women to seek medical advice regarding their sexual
Thomson appeals to the strongest case for abortion, rape, to define the rights of the fetus and the pregnant person. Thomson concludes that there are no cases where the person pregnant does not have the right to choose an abortion. Thomson considers the right to life of the pregnant person by presenting the case of a pregnant person dying as a result of their pregnancy. In this case, the right of the pregnant person to decide what happens to their body outweighs both the fetus and the pregnant person’s right to life.
Pregnant and Imprisoned in the United States. (2000). Birth: Issues in Perinatal Care, 27(4), 266-
In the case of Norton vs Argonaut Insurance Company there are many factors which impacted the court’s ruling as to the parties who were responsible resultant wrongful death of the infant Robyn Bernice Norton. The nurses, doctors(independent contractors) and the the hospital though not formally charged
Caplan, A., & Arp, R. (2014). The deliberately induced abortion of a human pregnancy is not justifiable. Contemporary debates in bioethics (pp. 122). Oxford, West Sussex: Wiley.
Spielman, B. (1995). [Review of Women and prenatal testing]. Journal of Law, Medicine & Ethics, 23, 199-201.
are unethical because the fetus can feel pain, according to a review done by Britain Royal
In order to critically assess the approach of the courts in allowing damages for pure economic loss in cases of negligence. One must first outline what pure economic loss is and what it consists off. Pure economic loss can be defined as financial loss or damage to one party caused by another party due to their negligence however the negligent act that is carried out is ‘purely’ economic and has no relation to any physical damage caused to any person or property. Numerous cases illustrate pure economic loss and losses that are deemed to be ‘purely economic’ are demonstrated under the Accidents Act 1976.
A practical example of this is demonstrated in the case of R v Lowe. Whereby the parents failed to call the doctor. when their child fell ill. The special relationship between the child and the father made the father criminally liable where he failed to act. under his duty of care.