Birth, Death, NIED Flashcards
What is a wrongful birth claim?
Parent’s claim
Usually for birth of disabled kid, would’ve terminated if known
Majority allow
What is a wrongful conception claim?
Parent’s claim
Botched sterilization results in unwanted healthy kid
Generally allowed
What is a Wrongful Life claim?
Child’s claim
Generally not allowed
What damages are available for wrongful birth/ conception?
Economic (child rearing)
Noneconomic (pain and suffering)
What might court consider doing with damages in wrongful birth/conception?
Offset- offsetting damages by benefit gained from kid (generally allowed in WC)
Mitigation - avoidable consequences rule (most courts won’t use)
What damages might a parent get for Wrongful Birth?
Economic - extraordinary cost of raising abnormal kid
Maybe pain and suffering depending on NIED framework (Bystander or Burgess)
What damages might a parent get for Wrongful Conception?
Economic - pregnancy and birth only
Pain and suffering - pregnancy only
Offset - might happen if same class of damages
What is the difference between prenatal and preconception injury?
Prenatal = negligent injury to fetus
Preconception = negligent injury to woman who later gets pregnant and fetus is harmed as result
What is the test for if there’s a prenatal/preconception injury?
Is the fetus viable at time of injury?
Is the fetus born alive?
If yes to both –> always a claim
What does loss of consortium compensate for?
Less tangible aspects of life – loss of companionship, sex, love, care, support
What kind of claim is loss of consortium?
Derivative – attaches to WD or negligence (if a vegetable)
Because it’s derivative, it can’t be better than the victim’s claim
Who can get loss of consortium?
Definitely spouses
Other family members vary by state
What dictates who can bring a Wrongful Death claim?
Almost entirely statute based. Statute designates beneficiaries even if a will exists
What kind of damages can you get in a WD claim?
Economic Damages of what survivors lost by that person dying
Noneconomic damages (loss of companionship)
Who gets the damages in a wrongful death claim?
The victim’s survivors
How do you calculate economic damages for survivors in a WD claim?
- Loss to Survivors - Majority
- amount of $ survivors reasonably could’ve expected - Loss to Estate
- amount of $ victim would’ve saved from earnings during normal lifetime
Who benefits from the Loss to Estate measure for WD economic damages?
People who die without dependents, and kids who die
What is the majority rule for calculating economic damage for WD?
Loss to Survivors
What defense can be used in a wrongful death claim?
Any defense that could’ve been used against decedent
What is a survival claim?
Suits that were started before guy died and continue on after his death
Who gets the damages in a survival claim?
Estate of decedent
What claims do die with the decedent?
Defamation
How do you calculate economic damages for Survival Claims?
Any lost wages will only be for up until guy died
What kind of damages can you get in WD?
Loss of future income (measured by Loss to Survivors or Loss to Estate)
Lost Consortium
What kind of damages can you get in a Survival Claim?
Medical expenses
Loss of income up till death
Pain and suffering
Punitive
What are the defenses to WD?
Decedent and beneficiary’s comparative/ contributory negligence
- because WD is derivative and beneficiary can only recover if decedent could’ve
- and because this is beneficiary’s claim so their negligence is relevant
Statute of limitations
What are the defenses to Survival Claims?
Only decedent’s negligence is relevant
Statute of limitations (literally the same as it would’ve been if he was alive)
How does statute of limitations factor into WD?
Timing matters – is it a derivative claim or a new independent claim that arises upon death?
Some jurisdictions don’t start the clock until decedent dies
What are the elements of negligent infliction of emotional distress?
Same as negligence analysis, just the harm is the ED
What are the tests for showing NIED for direct victims?
- Impact rule - minority
- Physical manifestation
- Zone of Danger
What is the Impact Rule?
For NIED direct victim - physical impact is required, even if it didn’t hurt
What is the Physical Manifestation Rule?
For NIED - π must show that the emotional distress is legit by showing physical manifestation of it
Some jdx will look at frequency, intensity, interference with daily life
Some jdx will require a medical diagnosis
What is the Zone of Danger rule?
For direct NIED victims - must be within the zone of danger. Don’t need to have actually gotten hit, but it needs to have been possible
For indirect (bystander) NIED victims - must be within zone of danger and some jdx require feared for their life
What are the tests for indirect (bystander) NIED?
Third Restatement - near (but outside zone of danger), knew it was happening, closely related to victim
Zone of Danger - was close enough to get hit, and some jdx require fear for own life
Name the exceptions to NIED direct/ indirect victim rules
- Negligently telling someone a loved one is dead when they aren’t = instant NIED
- Negligently handling remains of loved one = instant NIED
- Burgess situation (mom sedated so didn’t qualify as bystander, but had special relationship with doctor)
What counts as closely related for bystander NIED liability?
Majority rule is family and spouses
Some jurisdictions expand to close friends, live in couples
