Wrongful Birth vs. Wrongful Life Damages, Overruling and Insurance Law
15 Pages Posted: 20 Apr 2015 Last revised: 24 Apr 2015
Date Written: April 18, 2015
This comparative discussion was instigated by occurrences in the Italian Supreme Court and has regards to the topics of wrongful birth and wrongful life claims, both being actions against a doctor for negligence during pregnancy, in particular for not discovering and/or not informing the parents on congenital malformation of the foetus.
The paper focuses on both medical law and insurance law related issues.
The first part aims at reviewing the status quo of wrongful birth and wrongful life claims in a comparative overview, and in particular at comparing the newest trends in Italy with the common law precedents. As a former stable line of cases in Italy, also common law Courts are reluctant to allow a “right not to be born if not healthy”, and only a pragmatic approach permits to uphold claims in which compensation for damages requires to assess the value of life itself. As of now, the paper proposes no solutions, but aims at stimulating further thinking.
The second part focuses on the law of insurance questions, and in particular questions whether overruling decisions in the medical malpractice field have a direct impact on the range of risks taken by the insurer, or if – acting as a prospective overruling – they are to be dealt with only after the insurer may evaluate the (legal) existence of a new risk and include it in the determination of the premium. The proposed analysis compares the Italian and the Anglo-Saxon concept of insurance, underlining a significant trade-off; however solutions to the proposed questions seem to converge.
Note: The paper was presented during an international conference on Insurance Law, Governance and Transparency: Basics of the Legal Certainty, held in Palic (Serbia) on 17-18 April, 2015, promoted by AIDA (Association Internationale de Droit des Assurances), IRZ (Deusche Stiftung für Internationale Rechtliche Zusammenarbeit e.v.) and GDV (Die deutschen Versicherer). The attached paper is part of the proceedings, published for the use of participants by Planeta Print, Belgrade, 2015 ISBN 978-86-903105-8-6, pp. 333-359 (in English; a Serbian version is also available in the book).
Keywords: Wrongful birth claim, wrongful life claim, medical malpractice, negligence, pecuniary compensation, value of life, insurance, overruling decisions, never existed risk, predictable risks
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