Monday, September 18, 2006

Tort of Willful Ignorance

There ought to be a tort of willful ignorance. It made my blood boil to read in the LA Times about some obtuse woman who is HIV-positive, but refuses to believe the virus is deadly, and passed on the fatal virus to her baby daughter. When the baby girl came down with AIDS-related pneumonia last year, the mother refused realistic treatment, sought out a quack doctor who shared her quack views, and claims to be puzzled as to why her daughter died. The Times reports that she "is founder of Alive & Well AIDS Alternatives, a nonprofit that challenges 'common assumptions' about AIDS. Her group's website and toll-free hotline cater to expectant HIV-positive mothers who shun AIDS medications, want to breast-feed their babies and seek to meet others of like mind." In other words, it's not enough that she's killed her own daughter, but she wants to help other willful ignoramuses do the same. Though I'm loath to resurrect Oliver Wendell Holmes on this issue, maybe some people do deserve to be sterilized.

1 comment:

KipEsquire said...

Actually, tort law is a lot closer to what you're advocating than you might realize.

Two examples:

(1) In the tort of fraud, a plaintiff need not show "intent to defraud" but a lower standard called "scienter," which includes "making a statement and either knowing it is false OR having no knowledge of its truthfulness one way or the other." In other words, saying "yes" when the answer is "I don't know" is also fraud.

(2) The general culpability standards of "recklessness" and "negligence" can easily include willful ignorance. If a reasonable person would not have unsafe sex without knowing their HIV status, then, by definition, that is negligent conduct and could also rise to reckless conduct.

Far more challenging is whether the child has an actionable claim against the mother for "wrongful birth," which is an innovative new tort.