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1989 U. Ill. L. Rev. 761 (1989)
Compensating Parents for the Loss of Their Nonfatally Injured Child's Society: Extending the Notion of Consortium to the Filial Relationship

handle is hein.journals/unilllr1989 and id is 777 raw text is: COMPENSATING PARENTS FOR THE LOSS OF THEIR NONFATALLY INJURED CHILD'S SOCIETY: EXTENDING THE NOTION OF CONSORTIUM TO THE FILIAL RELATIONSHIP MARK L. JOHNSON I. INTRODUCTION When a child has been injured nonfatally,' courts historically have denied the parents' claim for recovery of the loss of their child's consor- tium. Since the 1970s, however, an increasing number of courts have permitted parents such recovery. Despite what many believe, recogniz- ing this claim does not mark a significant policy shift in redefining and protecting the filial relationship. Rather, recognizing this cause of action simply extends courts' historical desire to permit recovery of consortium in other areas of the law where another has negligently or intentionally disrupted the filial relationship. This note focuses on the parents' ability to recover for the loss of their child's consortium caused by a nonfatal injury. The note initially considers the damages resulting from an injury to the child that the child as well as the parents may recover.2 Next, the note explores the nebulous concept of consortium, attempts to understand its parameters, and devel- ops an alternative term that is unique to the filial relationship.3 An anal- ysis of the protection courts have afforded the filial relationship by permitting recovery for a loss of a child's consortium in other areas of the law follows.' The note then examines both the policy and procedural reasons that courts cite for denying recovery.- Finally, the note advances a proposal codifying the reasons that courts offer when permitting recov- ery and remedying those procedural reasons that courts cite for denying recovery.6 1. For example, a normal sixteen-year-old boy received an overdose of general anesthesia in preparation for diagnostic procedures. The anesthesia rendered him unconscious. He remained co- matose for four months, during which time he underwent fourteen neurosurgeries. On wakening, his parents discovered that his mental age had been reduced to three and that he was totally blind. Baxter v. Superior Court, 19 Cal. 3d 461, 563 P.2d 871, 138 Cal. Rptr. 315 (1977); see also Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (1985) (normal ten-year-old boy mistakenly received dosage of liquid cocaine and suffered severe and permanent brain damage); Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975) (An infant, prematurely born, received excessive oxygen while in the hospi- tal's premature-infant care unit. As a result, the child suffered permanent blindness and disfigurement.). 2. See infra notes 7-35 and accompanying text. 3. See infra notes 36-50 and accompanying text. 4. See infra notes 51-122 and accompanying text. 5. See infra notes 127-232 and accompanying text. 6. See infra note 234-235 and accompanying text.

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