O if foreseeability were the standard there would be

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o If foreseeability were the standard there would be millions of cases. Not economic. o This allows courts to adjudicate rather than manage. o Using bright line rule creates predictability for the court; pragmatic approach Is this going to be a proximate cause issue? Or a no duty issue? Unborn Children Wrongful Death Actions : May not be maintained for the death of an unborn child. o Before there may be a decedent there must inevitably be a birth. o Court draws bright line and says child must be born in order to recover; there is a dissent, which argues that it’s not fair that 1 minute may make a difference if a baby lives and then dies immediately Endresz v. Friedberg : NY case, P was in a car accident, 2 days later delivered stillborn twins Parent’s Recovery:
o Mother: physical injuries and maybe emotional injuries (In 2007, the court of appeals said the mother could recover for emotional distress) o Father: loss of consortium Bright line cut off: Child viable in utero if injured by tort allowed to sue when born with physical injuries, even if child dies minutes after birth. o EPTL 5-4.1 applies only if the child was born Wrongful Life When a physician negligently fails to inform parents accurately of the risks involved in a pregnancy, said negligence being instrumental either in the parents’ decision to conceive or the parents’ decision not to terminate the pregnancy. o Becker v. Schwartz - NY law- mother gives birth to a child with downs syndrome and sues doctors for never advising of the risk to women over 35 years of age and never advising of the availability of the amniocentesis test, claiming if she was informed she would have aborted i. Court held child cannot recover for wrongful life because 1) the infant did not suffer any legally cognizable injury and 2) the remedy afforded an injured party is to place that party in the position he would have been in but for the negligence of D 1. Too speculative for a jury to determine the degree of life for the child living with the disability than not living at all 2. Doctors have no duty to the infant although arguably they are foreseeable risks of harm ii. Parents sue for economic loss, emotional distress and medical costs . 1. Parents cannot recover for emotional distress - cant ascertain the damages like infants cause of action- could still lead a happy life even with a child with a disability 2. Parents can bring action for medical malpractice (expenses) b/c it is ascertainable damages. The expense which they have borne can be calculated a. Damages are cut off when child reaches 21 in NY and child cannot recover medical expenses at all- in most cases, the child dies young but the recovery is limited up to the 21 st birthday and only for extraordinary expenses Courts allowed recovery in Johnson case when woman received a letter that her mom was dead, even though she was alive; the only foreseeable thing in this case is that she will feel emotional and psychological distress Limited Duty: Emotional Distress

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