Legal clinical choice Essay Example for Free

Legal clinical choice Essay The case of Harriton v Stephens tackled the controversial wrongful life actions. It sought to finally pass upon the validity of the said action under Australian law. Such actions are controversial and complex due to the questions of law and public policy surrounding it. The determination of the issue is of great importance, especially now, because of the recent developments such as abortion becoming a legal clinical choice if it was made to avoid chronic disabilities due to in utero related deceases. This paper will seek to provide an analysis of the finding of the High Court: namely, the majority’s proposition that wrongful life actions can not prosper because the victim could not demonstrate that he or she had suffered any harm capable of being understood or assessed by the court as well as Kirby’s proposition that denying the existence of wrongful life actions erects an immunity around health care providers whose negligence results in a child who would not otherwise have existed, being born into a life of suffering. Section 2. Facts Alexia Harriton was born â€Å"profoundly, incurably and tragically disabled†. The disability was due to her exposure to the rubella virus before she was born. Olga Harriton, the mother of the appellant, called Dr. Max Stephens, a general practitioner, to treat her for an illness. She informed him that she was concerned because she was getting rashes and fever, two symptoms of the rubella virus. She further informed the doctor that this was a problem because she believed herself to be pregnant. Under the advice of the doctor, Mrs. Harriton underwent blood testing to determine if she had the rubella virus and to check if she was indeed pregnant. Upon the release of the results, she contacted Dr. Paul Stephens, the son and partner of Dr. Max Stephens, to present the results of the blood testing. He concluded that she was pregnant but was not suffering from the rubella virus. However, it would seem that Mrs. Harrington was misdiagnosed by Dr. Paul Stephens. As a result, Alexia was born suffering from mental retardation, blindness, deafness and spasticity, all of which are effects of the exposure to the rubella virus. Alexia filed a wrongful life action against Dr. Stephens under the claim that had he been diligent in his duty as a doctor, he would have correctly diagnosed Mrs. Harriton who would, as a result of the information about the effects of the virus to the child and the option to undergo abortion, have aborted the fetus avoiding the wrongful birth of Alexia. The case was dismissed in the Supreme Court of New South Wales and the Court of Appeal, before it was brought to the High Court of Australia, which ultimately dismissed the appeal. Six judges ruled in favor of the respondent. Kirby J was the lone dissenter. Section 3. Analysis A. Duty of Care The question of whether or not Dr. Stephens owed Alexia a duty of care by providing Mrs. Harriton with advice, which would ultimately lead to her being aborted is the principal issue in this case. It is the opinion of the majority that there is an inextricable link between the existence of a duty of care and the existence of a legally cognizable damage suffered by the plaintiff in such a way that if the latter is absent, the former can not exist. The majority’s reason for this proposition is that damage is the gist of an action for negligence. The existence of a duty of care presupposes that damages would result to the offended party as a result of the negligence of the party owing the duty of care. The lone dissenter, Kirby J, on the other hand, did not believe that damage to the plaintiff should be proved in order to establish the existence of a duty to care. Contrary to the opinion of the majority, he did not believe that there was a legal relationship between the two concepts. His Honour was content to conclude that the case fell within the established duty of care that a doctor owes to a foetus to avoid causing it prenatal injury. Analyzing both approaches, it can be observed that damage is an issue that looms largely in the ratio of the majority as compared to the ratio of Kirby J’s opinion. As a result, the absence of proof of injury according to the â€Å"well-settled and well understood principles† of tort law was the main reason why the action failed.