Birth, Death, NIED

Question 1

What is a wrongful birth claim?

Answer 1

Parent’s claim

Usually for birth of disabled kid, would’ve terminated if known

Majority allow

Question 2

What is a wrongful conception claim?

Answer 2

Parent’s claim

Botched sterilization results in unwanted healthy kid

Generally allowed

Question 3

What is a Wrongful Life claim?

Answer 3

Child’s claim

Generally not allowed

Question 4

What damages are available for wrongful birth/ conception?

Answer 4

Economic (child rearing)

Noneconomic (pain and suffering)

Question 5

What might court consider doing with damages in wrongful birth/conception?

Answer 5

Offset- offsetting damages by benefit gained from kid (generally allowed in WC)

Mitigation - avoidable consequences rule (most courts won’t use)

Question 6

What damages might a parent get for Wrongful Birth?

Answer 6

Economic - extraordinary cost of raising abnormal kid

Maybe pain and suffering depending on NIED framework (Bystander or Burgess)

Question 7

What damages might a parent get for Wrongful Conception?

Answer 7

Economic - pregnancy and birth only

Pain and suffering - pregnancy only

Offset - might happen if same class of damages

Question 8

What is the difference between prenatal and preconception injury?

Answer 8

Prenatal = negligent injury to fetus

Preconception = negligent injury to woman who later gets pregnant and fetus is harmed as result

Question 9

What is the test for if there’s a prenatal/preconception injury?

Answer 9

Is the fetus viable at time of injury?

Is the fetus born alive?

If yes to both –> always a claim

Question 10

What does loss of consortium compensate for?

Answer 10

Less tangible aspects of life – loss of companionship, sex, love, care, support

Question 11

What kind of claim is loss of consortium?

Answer 11

Derivative – attaches to WD or negligence (if a vegetable)

Because it’s derivative, it can’t be better than the victim’s claim

Question 12

Who can get loss of consortium?

Answer 12

Definitely spouses

Other family members vary by state

Question 13

What dictates who can bring a Wrongful Death claim?

Answer 13

Almost entirely statute based. Statute designates beneficiaries even if a will exists

Question 14

What kind of damages can you get in a WD claim?

Answer 14

Economic Damages of what survivors lost by that person dying

Noneconomic damages (loss of companionship)

Question 15

Who gets the damages in a wrongful death claim?

Answer 15

The victim’s survivors

Question 16

How do you calculate economic damages for survivors in a WD claim?

Answer 16

1. Loss to Survivors - Majority
   - amount of $ survivors reasonably could’ve expected
2. Loss to Estate
   - amount of $ victim would’ve saved from earnings during normal lifetime

Question 17

Who benefits from the Loss to Estate measure for WD economic damages?

Answer 17

People who die without dependents, and kids who die

Question 18

What is the majority rule for calculating economic damage for WD?

Answer 18

Loss to Survivors

Question 19

What defense can be used in a wrongful death claim?

Answer 19

Any defense that could’ve been used against decedent

Question 20

What is a survival claim?

Answer 20

Suits that were started before guy died and continue on after his death

Question 21

Who gets the damages in a survival claim?

Answer 21

Estate of decedent

Question 22

What claims do die with the decedent?

Answer 22

Defamation

Question 23

How do you calculate economic damages for Survival Claims?

Answer 23

Any lost wages will only be for up until guy died

Question 24

What kind of damages can you get in WD?

Answer 24

Loss of future income (measured by Loss to Survivors or Loss to Estate)

Lost Consortium

Question 25

What kind of damages can you get in a Survival Claim?

Answer 25

Medical expenses Loss of income up till death Pain and suffering Punitive

Question 26

What are the defenses to WD?

Answer 26

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

Question 27

What are the defenses to Survival Claims?

Answer 27

Only decedent's negligence is relevant Statute of limitations (literally the same as it would've been if he was alive)

Question 28

How does statute of limitations factor into WD?

Answer 28

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

Question 29

What are the elements of negligent infliction of emotional distress?

Answer 29

Same as negligence analysis, just the harm is the ED

Question 30

What are the tests for showing NIED for direct victims?

Answer 30

1. Impact rule - minority 2. Physical manifestation 3. Zone of Danger

Question 31

What is the Impact Rule?

Answer 31

For NIED direct victim - physical impact is required, even if it didn't hurt

Question 32

What is the Physical Manifestation Rule?

Answer 32

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

Question 33

What is the Zone of Danger rule?

Answer 33

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

Question 34

What are the tests for indirect (bystander) NIED?

Answer 34

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

Question 35

Name the exceptions to NIED direct/ indirect victim rules

Answer 35

1. Negligently telling someone a loved one is dead when they aren't = instant NIED 2. Negligently handling remains of loved one = instant NIED 3. Burgess situation (mom sedated so didn't qualify as bystander, but had special relationship with doctor)

Question 36

What counts as closely related for bystander NIED liability?

Answer 36

Majority rule is family and spouses Some jurisdictions expand to close friends, live in couples