Page 14 Flashcards
What is an example of a wrongful conception case?
Negligently done vasectomy and a child is conceived
What is wrongful conception?
Parent’s action for negligently caused birth of a healthy but unwanted child
What is the injury in a wrongful conception case?
Depravation of procreative choice
What are the damages available in a wrongful conception case?
Pregnancy and birth related damages like:
- costs
- pain and suffering
- lost wages
- loss of consortium
What recovery is often not allowed in a wrongful conception case?
Recovery for the cost of raising the child, unless the parents avoided pregnancy because they couldn’t afford it
What is the restatement’s benefit rule that is applied to wrongful conception?
Jury reduces the damages by the emotional gains of having a healthy baby
Is it possible for a court to say the plaintiff had a duty to mitigate damages by putting the baby up for adoption, or terminating the pregnancy, in a wrongful conception case?
Yes, but is very rare, because courts think it is too personal
What is wrongful birth?
Parents’ claim for damages due to a negligently caused birth of an unhealthy child
When do you often see wrongful birth cases?
In negligent genetic counseling, or misdiagnosing a condition of the fetus, and child is born with severe disabilities
What do parents usually sue for in a wrongful birth case?
The loss of their ability to make an informed decision about whether to have a disabled child, or carry it to term
If parents recover in a wrongful birth suit, what is the money used for?
To spend it on the child, but it only lasts until the child reaches majority
What must the plaintiff show in a wrongful birth case?
That but-for the defendant’s negligence, the plaintiff would’ve chosen to terminate the pregnancy
What are the damages in a wrongful birth case?
Usually the extraordinary expenses of raising a child with a disability, and sometimes emotional distress to the plaintiff
Who can recover in a wrongful birth case?
Only the parents, not grandparents or others
Can you recover for the usual child-rearing expenses in a wrongful birth situation?
No, only for extraordinary medical related expenses because of the child’s condition
What is wrongful life?
The child’s own legal claim against a healthcare provider for birth defects that came by negligently failing to discover the possible birth defects while the child was still a fetus
Why are many jurisdictions not wanting to recognize a wrongful life claim?
Because it is impossible to return the plaintiff to his pre-injury state, which was nonexistence
If the plaintiff does recover under wrongful life, what is the money for and how long does it last?
It is for the child to use, and it lasts his lifetime
Why is recovery for wrongful life limited to special damages?
Because the jury can’t determine damages based on the difference between non-life and life in an impaired state
Is it possible for a child to collect against his negligent mother?
No, because that is against public policy
What happens in a loss of consortium case?
Spouses or family members can collect for loss of companionship, comfort, support, services, affection, solace, sexual services, etc. that result from an injury to their loved one
What is loss of consortium?
When one spouse is injured in a way that diminishes the ability of the other spouse to take pleasure in the other’s company
What must the plaintiff prove in a loss of consortium case?
That the harm lead to impairment of what was a fulfilling and strong relationship
Modernly loss of consortium has been extended from just spouses to who?
Parents and children, but not cohabitants or life partners
What are the two different views of loss of consortium?
- CL: husbands could collect on their wives, parents could collect for the labor and earnings of their child, but wives and kids couldn’t collect anything
- modernly: both spouses can recover as long as they can show a complete loss of companionship/intercourse for a definite period of time (just putting a strain on the relationship is not enough). Parents can recover for their kids but usually kids can’t recover for parents
What is Wrongful Death?
The loss suffered from the tortiously inflicted death of a close relative
Who can usually recover for wrongful death?
Spouses, parents, and children
Is wrongful death a common law or modern law concept?
Is not recognized at common law, so it is purely modern
If a hemophiliac dies because of someone else’s negligence, what are his damages reduced by?
By the defendant’s lower life expectancy due to his pre-existing condition
Does the thin skull rule still apply in a wrongful death situation?
Yes
What is recovery for wrongful death?
- traditionally: only pecuniary loss
- now: lost support and other benefits from the wrongful death, like loss of companionship and affection, but you usually can’t recover for grief or sorrow
How can the plaintiff prove losses for wrongful death?
He must do this with certainty by showing:
- a relevant time period for support
- value of the support for lost services
- relationship between victim and plaintiff
- character of the victim (generous or miserly)
How are losses calculated if a minor child dies for wrongful death?
By the money benefits that would’ve been received, so plaintiff has to give factual support showing his own education level, career paths of other family members, what the parents would’ve spent on raising the child, etc.
How is economic loss usually measured for wrongful death?
Loss to survivors and loss to the estate measure
What are some of the economic losses that you can recover in wrongful death?
- prospective loss of earnings
- contribution
- prospective expenses
- loss of companionship
- comfort
- mental anguish
- emotional distress
What is loss to survivors for wrongful death?
Loss of support to dependents, like housing, food, clothing
What is loss to the estate measure for wrongful death?
Loss of projected lifetime savings of the deceased
How is loss to the estate measure calculated for wrongful death?
By the probable lifetime earnings of the victim, subtracting expenses he would’ve to maintain himself
What are defenses to wrongful death?
- Contributory Fault: if the only beneficiary was contributorily negligent, he’s completely barred from recovery
- if out of many beneficiaries only some were contributorily negligent: only the negligent ones are barred - Comparative Fault: damages are reduced by the percentage of fault attributable to the decedent
What are survival actions?
Continuation of decedent’s action against a defendant after he dies that is brought by the administrator of his estate
What are some examples of the types of damages a P can recover in a survival action?
Damages for personal injuries, property damage, etc.
What happens to anything that is recovered in a survival action?
It goes to the decedent’s estate
What is the basis of a survival action?
Pre-death injuries, but they don’t have to have caused the death
Is a survival action a common-law or modern concept?
It is not recognized at common-law, this is just a modern concept
