Most courts that allow recovery in these cases site Dillon v Legg and its

Most courts that allow recovery in these cases site

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e. Limited Duty Rules: Unborn Children pg. 386-398 i. A viable fetus which is negligently injured en ventre sa mere and subsequently stillborn may be the basis for a wrongful death action pursuant to the statute 1. Different jurisdictions have different views: a. Kid has to be born alive to have a cause of action for wrongful death (DUTY IF BORN ALIVE) b. Viability is required (only injuries negligently inflicted on a viable child) (DUTY IF VIABLE) MAJORITY APPROACH c. Viability is not required, but you have to establish causation which may be difficult early on in the pregnancy. (DUTY) Viable = able to survive outside the womb ii. Wrongful birth: brought by parents – but for your failure to sterilize properly, a non-negligent vasectomy, etc., I would not have had this child. Usually it is a child born with an impairment of some kind. iii. Wrongful life: brought by child – child is born with impairment 1. Assumption in these cases, the assumption is but for the negligence, the child would never have been born at all. The BETTER result would be that the child would never have been born. 2. Procanik: An infant plaintiff may recover as special damages the extraordinary medical expenses attributable to his affliction, but he may not recover general damages for emotional distress or for an impaired childhood. a. The defendant doctors were negligent and this negligence deprived the parents of the choice of terminating the
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