form of the decedent's estate) that had a right to sue for compensation. The measurement insurvival act statutes tends to be the kind of damages the decedent would have been able to collecthad he lived. Again, wage loss was a prime consideration. In addition, statutes sometimes provide for recovery for emotional harms, either in the form of the loss of relationship suffered by the family members, or in the form of the ability to enjoy life that was lost by the decedentthrough his premature death. Since remedies for wrongful death are creatures of statute for themost part, careful attention must be paid to the specific provisions in the jurisdiction governingeach case.
In the case of a unhealthy child, however, most jurisdictions recognize the right of the parents to recover for the extraordinary costs associated with the child's disability. Finally,most jurisdictions refuse to recognize (or provide minimal recovery for) the child's claimthat he would have been better off never to have been born. This claim is raised only by achild born with significant disabilities, and most court--recognizing the metaphysicaldifficulty of evaluating life versus non-life--have either refused to recognize the cause of action or have granted only nominal damages.Most tort cases involve a clearcut injury such as a broken arm or a facial scar. Where thedefendant's negligence results in an unplanned pregnancy, however, damages are more difficultto assess. A typical case involves the failure of a sterilization or birth control measure, or thefailure of a healthcare professional to provide timely advice. The claim is that if the defendanthad used reasonable care, the pregnancy would not have occurred. Courts are divided on how toassess damages where the child is born otherwise healthy. Some jurisdictions have stated as amatter of policy that, while the expense of being pregnant and having the child, along with theassociated pain and suffering, can be compensated, no compensation is required for the cost(both financial and emotional) of rearing a child, since as a matter of law those costs areoutweighed by the benefit of the new family member. Other jurisdictions have permitted the juryon a case-by-case basis to assess the positive as well as the negative features of having a childand (using the Restatement test of imputed benefit) come up with a net damages assessment.
Bystander / Loss of Consortium
A final category of related parties who seek compensation includes those who were either present at a gruesome, and were emotionally traumatized by observing the accident, or relativeswho suffer significant losses because of their dependence on the direct victim. Most jurisdictions permit recovery by a spouse for loss of "consortium"--literally, the society (and companionship)with the direct victim. In most jurisdictions a family member other than a spouse can recover only emotional damages if they were present at the accident scene. However, the law in this areais unsettled.
Calculating the Amount of Damages
Even where the categories of recoverable damages have been determined, and the eligible partieshave been identified, it remains to set an actual dollar amount. Several factors come into play toeffect this calculation.
A major emphasis of the tort reform movement was the claim that awards in personal injury suitswere excessive. Many jurisdictions responded by enacting limitations on the total amount of damages that could be recovered, particularly non-economic damages (such as pain andsuffering). Some of these statutes were held constitutional; other cases held that such limitationsviolated a variety of state constitutional rights, such as the open access of the courts, or the rightto a jury trial.
If the plaintiff is compensated from a source other than a tortfeasor, the traditional rule in most
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