This was a case brought out Yvonne and Willie Smith (also known as “Mr. & Mrs. Smith) against Dr. Saraf, for a wrongful birth case, on behalf of their son Elijah Smith and themselves. The plaintiff alleged that due to the negligence of Dr Saraf, and because Dr Saraf did not conduct the right prenatal tests, the Smith’s were prevented from identifying any serious birth defect in the developing fetus and in this way were prevented from terminating the pregnancy. This was a parent’s claim for the birth of a deformed child, rather than the child’s claim for being born deformed into the world (Wrongful life).
This simple seemed to be a tort case put forth, but there were several other issues that needed to be considered. At the time of malpractice, Mrs. Smith was working with the US Air force, and Dr. Saraf who was not an employee of the military, but the care provided for Mrs. Smith was sponsored by the US Military. Mrs. Smith had to utilize the facilities of the Military hospital for prenatal care (Bioethica, 2010).
The government claimed many defenses including the Federal Torts Claims Act which goes against claims that can develop from military services.
In the Feres V. s US Case (340 US 135), it was found that the government was released of all liabilities in cases where injuries develops to the servicemen out of military service. In that case, a claim was not allowed when a child died four days after birth due to negligent conduct of the military doctors. However, this case had a different turn (Bioethica, 2010).
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The damage to the fetus was caused due to direct factors and certain rationales that were considered under the Feres case could not be considered in this case, as it concerned with negligence during the prenatal stage. These included:- 1.
The relationship between the military and the servicemen 2. The compensation that could be payable to the members 3. The demand to maintain military discipline and services The Feres doctrine was applicable on reducing the liability of the military for decisions during made from service. The Feres principle was applied to a case which seemed on the face to be problems with military discipline, but in fact was due to some other cause. The FTCA has also been used by the courts to prevent liability of the government in cases where the servicemen have suffered damages which are not related to military operations.
The Feres doctrine could be applied only if these factors were present:- 1. The relationship between the government & the servicemen was distinctively federal 2. Presence of a veteran benefits scheme for servicemen who were injured 3. Relationship between the soldiers and their superiors 4. Also the presence of third parties, who could be held liable for indemnification Hence, in this case the Government and not the doctor was held liable and was similar to the Stencel Aero Engineering v. Unites States, 431 U. S. 666 (1977), in which the US government and the manufacturers were held liable for faults in the ejection system (Bioethica, 2010).
The information of the fetus not provided by the physician is a wrongful birth claim. The government on the other hand felt that the damage was due to injury from her military service (incident to service), though unrelated to the services. Even the services provided by the military doctors fell within the clause of incident to service. Therefore the claim was barred by the Feres Doctrine.
However, Mrs Smith cannot be barred from claiming against the US government for indemnification. This was similar to the case Romero Vs. US, in which civilian dependents did not have the Feres Doctrine applying over them. Mrs. Smith had two claims, one for damages to herself and the other to her dependent child for Wrongful birth (Bioethica, 2010).
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Every member of society should be required before the age of 21 to perform at least 1 year of community or government service, such as in the Piece Corps, the military, a hospital, the Environmental Conservancy Corps, a rural or inner-city schools, or some equivalent organization. It has been suggested that to improve communities of United States and to solve the problem of too few workers for ...
Both these claims were independent and were an action of negligence by the hospital to a member ‘incident to service’. As Mrs. Smith cannot have a claim of negligence against the US government, nor can Dr.
Saraf file for indemnification from the US government, the US government can file for summary judgment and also be liable for identification to contribute towards the wrongful birth claim. The US government was also held liable under the corporate criminal liability clause under the Respondeat superior and vicarious liability clause principles of the employees (Carrasco, 1999) Required Readings Bioethica (2010).
in Smith, Y & W /wrongful birth, Regulacion juridica de las biotecnologias Retrieved August 17, 2009.
http://www. biotech. bioetica. org/vs8. html Carrasco, C. & Dupee, M. K. (1999).
Corporate criminal liability. The American Criminal Law Review 36, (3), 445. Retrieved on August 17, 2009. Lawyers USA (2006).
Illinois Supreme Court rules hospital vicariously liable based on theory of apparent authority. St. Charles County Business Record. Wentzville, July 23, 2006, Pg. 1. Retrieved on August 17, 2009. Lawyers Weekly USA Staff (2006, May).
Arizona Court of Appeals rules plaintiff can’t sue hospital for vicarious liability.
Lawyer’s Weekly USA,1. Retrieved August 17, 2009. Websites Center for corporate Policy (2004).
Corporate Crime and Abuse: Tracking the Problem. Retrieved on August 17, 2009 from http://www. corporatepolicy. org/issues/crimedata. htm. Medical Malpractice. com (2007).
Regional Resources. Retrieved on August 17, 2009 from http://www. medicalmalpractice. com/. Mokhiber, R. (2005) Corporate Crime Reporter. Retrieved on August 17, 2009 from http://www. corporatecrimereporter. com/index. html.
