"Egzistencinės žalos" atlyginimas kaip teisės problema biomedicinos srityje

Abstract

Court practice of awarding “existential damages” in “wrongful pregnancy”, “wrongful birth” and “wrongful life” cases of common law countries (United States of America, United Kingdom and Federation of Australia) and continental law countries (France, Federal Republic of Germany, the Netherlands) are analysed in this work. Emphasis is put on court decisions concerning the awarding of “existential damages” and arguments that courts base their decisions on. In such court cases usually one of the following rules is applied: 1) not to award such damages at all; 2) to award such damages in part (only direct damages are awarded); 3) to award all such damages; 4) to apply offset benefit rule (the mechanism of minimizing damages is applied). So court decisions in analysed cases are rather varied. The majority of such case actions take place in common law system courts. In those common law system countries that were analysed in this work, “existential damages” are usually awarded in “wrongful pregnancy” and “wrongful birth” cases, but it is still refrained to award such damages in “wrongful life” cases. On the other hand, in continental law system courts, all these cases either are not present at all or are rather rare, but courts awarded “existential damages” in “wrongful life” cases. However such court decisions were “corrected” by the legislators who passed the laws banning the reward of damages to the child, who had experienced such damages because of his life or existence. Courts in Lithuania have not dealt yet with such cases, but in this work, there is an attempt to evaluate, based on the national laws of the Republic of Lithuania and court decisions, whether there are prerequisites to award “existential damages” in Lithuania. But we are faced with some problems. First of all, all the procedures that are performed by medical professionals in analysed cases, when they act negligently, fall outside of the healthcare services according to the definitions given by laws; secondly, there is no access to all medical norms, regulating the conduct of medical professionals, therefore, it is difficult to assess whether in certain cases they do not breach their duties. However, based on the existing laws and on the position that a child cannot be considered as being a damage in a legal and moral way, it is concluded that there are no prerequisites to award “existential damages” in Lithuania.