Consultation Paper on Bioethics - Law Reform Commission

in similar circumstances. 86 Staughton LJ observed that he doubted that an
English court would have awarded such a high sum, but confirmed that some
liability would exist. 87
(III) Special Damages
5.37 A possible solution to mitigate judicial reluctance to award general
damages for the violation of the right to refuse medical treatment is to allow only
special damages for the medical expenses and extraordinary costs incidental to
the plaintiff‟s continued living. 88 Special damages have been awarded in
wrongful life claims. In Procanik v Cillo, 89 the New Jersey Supreme Court limited
recovery to special damages in the case of a physician who negligently failed to
diagnose measles during the first trimester of pregnancy. In so doing, the court
avoided having to recognise life as a legally recognisable harm, which would be
required in a finding for general damages for a child‟s pain and suffering. The
court observed that “the interests of fairness and justice are better served
through more predictably measured damages – the costs of the extraordinary
medical expenses necessitated by the infant child‟s handicaps.” 90 It is argued
that special damages for wrongful living would be easier to assess than those
for wrongful life, as the former involves a very precise time frame commencing
with the refused treatment, and concluding with the patient‟s death whereas the
latter involves the lifetime of a child. 91
(vii) Wrongful interference with constitutional rights
(I) Constitutional rights are enforceable against private individuals as
well as the State
5.38 There is a constitutional right to refuse medical treatment under Irish
law. The Irish courts have held that a constitutional right in one person implies a
corresponding duty in, not only the State, but also in other persons to respect
86 [1992] 4 All ER 649at 665 per Butler-Sloss LJ.
87 Ibid at 669 per Staughton LJ.
88 Donohue “‟Wrongful Living‟: Recovery for a Physician‟s Infringement on an
Individual‟s Right to Die” (1997-1998) 14 Journal of Contemporary Health Law
and Policy 391 at 413.
89 478 A 2d 755 (NJ 1984).
90 Ibid at 763.
91 Donohue “‟Wrongful Living‟: Recovery for a Physician‟s Infringement on an
Individual‟s Right to Die” (1997-1998) 14 Journal of Contemporary Health Law
and Policy 391 at 415-416.
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