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
