I respectfully dissent. I would hold that the “lost opportunity” doctrine applies to a case of this nature.
In my view, the line of medical malpractice cases dealing with a patient’s lost opportunity for long-term survival of or recovery from a disease or condition provides a close analogy. In the majority of jurisdictions which have considered the question, the courts permit recovery for such a lost opportunity. Essentially, these cases employ one of three rationales.
The courts in some jurisdictions view the lost opportunity itself as the compensable injury for which a negligent defendant is liable, thus avoiding difficulties in proving causation where the chance of survival or recovery in the first instance is 50 percent or less. These courts often rely in significant part on the thoughtful analysis of King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353. (See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir. 1986) 799 F.2d 911, 918-919; Hetrick v. Weimer (1986) 67 Md.App. 522 [508 A.2d 522, 531]; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131, 135-138; Herskovits v. Group Health Co-op. (1983) *70799 Wn.2d 609 [664 P.2d 474, 486], conc. opn. of Pearson, J.; see also James v. United States (N.D.Cal. 1980) 483 F.Supp. 581, 587; Jordan v. Bero (1974) 158 W.Va. 28 [210 S.E.2d 618, 640-641], conc, opn., Neely, J.)
Although California courts have not as yet wrestled with this issue directly, James v. United States, supra, 483 F.Supp. 581, does apply California law to a federal tort claim. James predates and thus does not rely on the King article, but is to a degree a precursor of it, stating liability will attach where the evidence shows a defendant’s conduct placed a plaintiff in a position worse than that in which the plaintiff otherwise would have been. (At p. 585.) There is a sound public policy basis for adopting the expanded version of this analysis so thoughtfully articulated by King, i.e., viewing the degree to which a plaintiff’s position has been worsened as the compensable injury in cases where a patient’s health or longevity has been impaired by a defendant’s negligence. As embodied in part in the wrongful death statutes, our society places a singularly high value on one’s right to live out one’s natural life span in the greatest degree of health that freedom from the wrongdoing of others permits.
The second rationale upon which the “lost opportunity of survival” cases rely draws an analogy to “failure to rescue” cases, in particular Gardner v. National Bulk Carriers, Inc. (4th Cir. 1962) 310 F.2d 284, certiorari denied (1963) 372 U.S. 913 [9 L.Ed.2d 721, 83 S.Ct. 728], Gardner notes the duty to rescue “arises when there is a reasonable possibility of rescue.” (At p. 287, italics added.) When there has been no attempt to rescue, it cannot be determined with any degree of certainty—or even probability—whether the attempt would have saved the victim’s life. Therefore, “causation is proved if the [defendant’s] omission destroys the reasonable possibility of rescue. [That is,] proximate cause here is implicit in the breach of duty. Indeed, the duty would be empty if it did not itself embrace the loss as a consequence of its breach. Once the evidence sustains the reasonable possibility of rescue, ample or narrow, according to the circumstances, total disregard of duty, refusal to make even a try, as was the case here, imposes liability.” (Ibid.; see also Zinnel v. United States Shipping Board E. F. Corporation (2d Cir. 1925) 10 F.2d 47, 49.)
In the context of medical malpractice “lost opportunity of survival” cases, the “failure to rescue” analogy first was employed in dicta in Hicks v. United States (4th Cir. 1966) 368 F.2d 626. Hicks notes: “When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.” (At p. 632, italics added.) *708Other courts have adopted the Hicks rationale. (See, e.g., Mays v. United States (D.C.Colo. 1985) 608 F.Supp. 1476, 1480-1481; Aasheim v. Humberger (1985) 215 Mont. 127 [695 P.2d 824, 828]; Thompson v. Sun City Community Hosp., Inc. (1984) 141 Ariz. 597 [688 P.2d 605, 616]; Roberson v. Counselman (1984) 235 Kan. 1006 [686 P.2d 149]; O’Brien v. Stover (8th Cir. 1971) 443 F.2d 1013, 1018-1019; Jeanes v. Milner (8th Cir. 1970) 428 F.2d 598, 604-605.) In essence, these cases reformulate the duty owed, then look to the consequences of its breach in ascertaining the compensable injury.
A lost opportunity of survival or recovery reasonably may be viewed as analogous to a lost opportunity of rescue, for the medical practitioner may be considered, in effect, to undertake the attempted “rescue” of the patient from a specific disease or condition. However, the analogy is more strained than the relatively straightforward approach of directly viewing the lost opportunity as the compensable injury.
The third rationale employed in the “lost opportunity of survival” cases is derived from Restatement Second of Torts section 323, subdivision (a), which provides in pertinent part: “One who undertakes ... to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if [][] (a) his failure to exercise such care increases the risk of such harm.” California expressly recognizes this principle of tort liability. (See Williams v. State of California (1983) 34 Cal.3d 18, 23[192 Cal Rptr. 233, 664 P.2d 137]; Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 132 [214 Cal.Rptr. 177].)
The jurisdictions that rely on this principle to permit recovery for a lost opportunity of survival or recovery recognize the ultimate harm suffered (death or incomplete recovery) as the compensable injury and the underlying disease or condition as a cause of that injury. However, they also recognize that the medical practitioner has undertaken to protect the patient from this very injury through prompt and accurate diagnosis, as well as effective treatment. Hence, a failure to exercise due care in the undertaking also is a cause of the ultimate harm, in that the medical practitioner has, through his or her negligence, increased the risk of harm. (McKellips v. Saint Francis Hosp., Inc. (Okla. 1987) 741 P.2d 467, 471-473; Herskovits v. Group Health Corp., supra, 664 P.2d at pp. 476-477.) This is consistent with the traditional causation analysis employed in California in the face of multiple causative factors. (Cf. Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 359 [168 Cal.Rptr. 571].)
Recognizing the dual causative factors at work, these jurisdictions permit a case to go to the jury once a plaintiff has made a showing that the *709defendant’s negligence increased the risk of harm. Generally, the courts acknowledge, it is for the jury to determine whether that increase in risk is a substantial factor in causing the ultimate harm. (McKellips v. Saint Francis Hosp., Inc., supra, 741 P.2d at p. 475; Evers v. Dollinger (1984) 95 N.J. 399 [471 A.2d 405, 415]; Gradel v. Inouye (1980) 491 Pa. 534 [421 A.2d 674, 679]; see also Jones v. Montefiore Hospital (1981) 491 Pa. 410 [431 A.2d 920]; Herskovits v. Group Health Co-op., supra, 664 P.2d at pp. 476-477.) Thus, so long as reasonable minds may differ on whether a specific increased risk of harm was a substantial factor in bringing about the ultimate injury, causation is not a question which can be resolved on summary judgment.
There is no question in my mind but that the instant matter fits comfortably within the first two of the foregoing rationales. Clearly, defendants’ negligence placed plaintiff Brenda Simmons in a position worse than that in which she otherwise would have been, depriving her entirely of any opportunity to learn information essential to her informed decision whether to continue her pregnancy. Similarly, there is evidence here which suggests there was a reasonable possibility of “rescuing” her from her ignorance; it may have been only a 20 percent possibility, but it existed and is at least sufficient to present a question for determination by the trier of fact.
In determining the extent, if any, to which the foregoing rationales should be applied to the instant matter the critical question is one of public policy: whether the interest at stake here is entitled to legal protection from negligence. (Smith v. Superior Court (1984) 151 Cal.App.3d 491, 496 [198 Cal.Rptr. 829].) California, like other states, affords considerable protection to a woman’s right to make an informed decision whether to continue with a pregnancy. (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 8 [190 Cal.Rptr. 84].) Hence, a breach of duty that deprives a woman of information which may be necessary to such a decision, or the reasonable opportunity to make that decision, results in liability. (Turpin v. Sortini (1982) 31 Cal.3d 220, 234 [182 Cal.Rptr. 337, 643 P.2d 954]; see also Berman v. Allan (1979) 80 N.J. 421 [404 A.2d 8, 14]; Becker v. Schwartz (1978) 46 N.Y.2d 401 [413 N.Y.S.2d 895, 306 N.E.2d 307].)
Some courts have been reluctant to say it is better that a fetus not be born at all than that it be born defective (see, e.g., Berman v. Allan, supra, 404 A.2d at pp. 12-13; Speck v. Finegold (1979) 268 Pa.Super. 342 [408 A.2d 496, 508]; Becker v. Schwartz, supra, 413 N.Y.S.2d at p. 900), limiting their concern to protecting the mother’s, or parents’, right to make the decision. However, it is becoming increasingly clear what a massive toll giving birth to a severely defective infant can take. In certain cases, the child is condemned to a brief and tortured existence. In many instances, whole families suffer grave damage or even destruction. Not all potential parents are *710equally able to bear the anguish and emotional burden attendant upon the birth of a genetically damaged infant. Depending on the extent of the impairment, any emotional “benefit” derived from the child’s existence may be significantly outweighed by the attendant anguish. (Phillips v. United States (D.S.C. 1983) 575 F.Supp. 1309, 1319-1320.)
This raises the question of whether the purpose of the Alpha Fetoprotein screening program is best served by permitting or denying recovery for failure to make it available in circumstances such as those presented here. Plaintiffs presented evidence that the test is important in part precisely because it provides the sole vehicle for detecting safely and at a modest cost pregnancies among younger women at a high risk for Down’s Syndrome. This suggests the purposes of the testing program would not be served adequately if the plaintiffs are precluded from recovering damages in a case such as this one. Inasmuch as a physician already is required to make this test available routinely to all pregnant women (Health & Saf. Code, § 289.7; Cal. Code Regs., tit. 17, § 6527), permitting recovery clearly would not increase the burden of testing or result in unjustified overtesting; thus, it would not tend to increase medical costs.
Permitting recovery in these particular circumstances is essential to the protection of a woman’s right to decide whether to continue a pregnancy. To hold otherwise is to subvert the deterrence function of tort law by preventing recovery “for the effects of conduct that may cause statistically irrefutable” injury. (McKellips v. Saint Francis Hosp., Inc., supra, 741 P.2d at p. 474.) To hold otherwise is to place “a segment of society often least able to exercise independent judgment” at the mercy of those professionals upon whom it must rely for vital prenatal care. (Roberson v. Counselman, supra, 686 P.2d at p. 160.) In other words, there is at stake here a significant interest entitled to legal protection from negligence. (Smith v. Superior Court, supra, 151 Cal.App.3d at p. 496.)
The majority attempts to distinguish the instant situation from that in which a diseased or injured patient loses a chance of survival or increased longevity. W'hile it cannot be said the genetically defective condition was caused by the medical practitioner’s negligence, it is equally true that he or she has not caused the initial disease or injury. This approach mistakes the nature of the interest to be protected and injury suffered. The real injury here is not the birth of a genetically damaged infant, but the compelled ignorance leading to that birth. In other words, in the circumstances present here, as well as those present in the “survival” cases, the medical negligence forces the patient unknowingly to assume additional risk.
Accordingly, I would adopt the rationale of such cases as Waffen v. U.S. Dept. of Health & Human Services, supra, 799 F.2d 911, Hetrick v. Weimer, *711supra, 508 A.2d 522, and DeBurkarte v. Louvar, supra, 393 N.W.2d 131, to hold the compensable injury here is plaintiff Brenda Simmons’s lost opportunity of acquiring that information which might have been essential to her informed decision whether to continue her pregnancy. This is a very real, “statistically irrefutable,” injury (McKellips v. Saint Francis Hosp., Inc., supra, 741 P.2d at p. 474) worthy of compensation. “[Tjhat a person is confronted with a ten percent, fifteen percent, or twenty percent probability (in the mathematical sense) that [she] will suffer future injuries should be sufficient to permit [her] to recover for those future injuries at least in proportion to the probability of such injuries occurring. . . . Once it is determined [to a medical certainty] that there is a probability of loss, evidence should then be admitted concerning the maximum expected loss should the victim completely lose in the game of chance [she] is playing with the fates.” (Jordan v. Bero, supra, 210 S.E.2d at pp. 640-641, conc, opn. of Neely, J.) If the parental right to weigh and decide whether the tremendous burden of giving birth to a genetically impaired infant can be borne or whether, in a particular circumstance, it is better for the child as well that a pregnancy be terminated is to have any substance, any real value, the loss of such an opportunity must be viewed as an injury as grave as a lost opportunity for survival or recovery.
Since the evidence shows plaintiff Brenda Simmons originally to have had approximately a 20 percent chance of learning she was carrying a fetus afflicted with Down’s Syndrome and further shows defendants’ failure to make available to her Alpha Fetoprotein testing completely destroyed that opportunity, it is clear to me that plaintiffs have submitted sufficient evidence to raise a triable issue of material fact on the issue of causation. Accordingly, I would hold that the trial court erred in granting summary judgment.
Appellants’ petition for review by the Supreme Court was denied November 16, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.