[cross-posted] Disabled woman sues doctor for letting her be born (Australia)

In 'wrongful life' suit, disabled woman blames doctor for letting her be born
By Emanuella Grinberg
Court TV
Updated Nov. 11, 2005, 7:08 p.m. ET

A blind and deaf Australian woman who claims she never should have been born is suing a doctor for a lifetime of suffering in the country's first "wrongful life" suit.


Alexia Harriton, 24, is seeking compensation from the doctor who misdiagnosed rubella in the first trimester of her mother's pregnancy, claiming Olga Harriton would have aborted her had she been aware of the potential birth defects arising from the illness.

Lawyers for the Sydney woman argued in Australia's highest court Thursday that Dr. Paul Stephens is liable for the costs arising from a lifetime of medical treatment that Harriton needs to survive.

His negligence resulted in the birth of a child who is "profoundly disabled," a media spokesperson for the law firm representing Harriton told Courttv.com.

Harriton's lawyers claim that Stephens had a duty to Olga Harriton and to her unborn daughter to inform her of the risk of the infection passing to her child.

"Had the rubella been diagnosed, Olga [Harriton] would have exercised her lawful right to terminate the pregnancy," court documents state.

The suit says Harriton, 24, who was born mentally retarded, spastic, deaf and blind, is in need of constant round-the-clock care from which she "can look forward to no improvement" in the future.

Harriton's attorneys asked Australia's Court of Appeals Thursday for unspecified damages associated with Alexia's "rubella affected life," including the costs of special care, medical expenses, housing and other expenses, according to a press statement. The lawyers would only speak to Courttv.com through their spokesperson, Kerry O'Shea.

A statute of limitations prevents Harriton's parents from filing the claim, making the case the first in Australia to be filed against a health-care specialist by a child born with congenital defects.

Harriton's suit, which was initially filed in 2002, was denied by lower courts on the grounds that the doctor did not breach his duty to the mother or the child.

"The defendant has not caused the infant's injury but merely failed to prevent its birth," Justice Timothy Studdert wrote in a June 2002 judgment.

Studdert also cited rulings from foreign courts, including the United States, which addressed the esoteric difficulties of putting a dollar tag on "the value of non existence" as compared to the costs of living with a disability.

"Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians," the New York Court of Appeals wrote in a 1986 decision rejecting a similar "wrongful life" claim. "The implications of any such proposition are staggering."

A similar claim had greater success in California, where the state appeals court found that a testing laboratory was responsible for the medical costs associated with the care of a child whose parents were not informed of the potential for a certain genetic disease being passed onto the fetus.

Alongside Harriton's suit is a similar claim from a 5-year-old Australian boy who was born with permanent brain damage and cerebral palsy after doctors failed to detect a blood disorder present in his father's system.

Keeden Waller's parents have filed suit on his behalf, claiming they would have sought out other methods of conception had they been aware of the potential for birth defects.

Waller's claims were also heard Thursday in conjunction with Harriton's, after a New South Wales appeals court rejected both their claims in 2004 in a 2-to-1 decision.

Those justices also said it was impossible to determine whether no life was better than a life of suffering, or to assess liability for that suffering.

Appeals Court Chief Justice James Spiegelman also found that the doctors did not breach any duty to the children.

The dissenting justice, however, found the doctors' negligence especially grave in light of the fact that the disabilities were easily detectable and preventable.

The High Court is expected to render its decision in the next few months.

Article URL:
http://www.courttv.com/news/2005/1110/harriton_ctv.html