Personal Injury Law Journal

One of the more difficult things that personal injury attorneys have to do is to explain to the family of someone who has died as a result of the negligence of another, how New Jersey law values their loss. Imagine that a loved one – a mother, father, child or spouse – has died as a result of an automobile accident or medical mistake. What would you consider to be the most significant element of damages for this loss? Most people would say that the loss of a special person causes great pain and suffering as well as psychological pain to those who are left behind. The unique characteristics of the loved one which made him her or her so special would also be mentioned. Unfortunately, these very real factors in the loss of a loved one have no value under New Jersey law, much to the shock and chagrin of those who are suffering as a result of the loss.

Wrongful death claims in New Jersey are controlled by a statute – N.J.S.A. 2A:31-1 – as they are in all states, because wrongful death claims are not found in the common law and are purely creatures of statute. New Jersey's Wrongful Death Act is a "pecuniary loss only" statute, which recognizes as elements of loss the dollar value of the lost contributions to the family unit, and nothing else. New Jersey courts have urged the legislature to amend this statute to more accurately reflect the actual losses sustained in the case of a wrongful death, but the legislation remains the same. In point of fact, both the New Jersey Senate and Assembly passed a wrongful death bill several years ago, but it died on the governor's desk when he refused to sign it. This antiquated law has caused numerous unjust results, and ultimately caused the New Jersey Supreme Court to engage in Solomon – like behavior in an attempt to reconcile a very difficult situation, in Green v. Bittner, 85 N. J. 1 (1980).  In this tragic case, a young woman about to go away to college died in an automobile accident. Her family sued for damages as a result of her death, and the jury, acting in accordance with the courts jury instructions, awarded zero damages, when they found that the cost of the young woman's personal maintenance (college tuition, etc.) outweighed any likely economic contribution she would make to the family unit. As harsh as it may sound, the loss of their beloved child had more positive economic ramifications for the family than negative. Does this mean that human life has no value ? Can a New Jersey Court affirm a ruling that awards zero damages for the loss of a precious life?

The Supreme Court struggled with the tension between the statutory language and the unjustness of this result, and arrived at a compromise which, although unsatisfactory, gives a jury a basis to award money damages when the deceased was not making a purely economic contribution to the family. The court found that while compensation for emotional loss is not allowable, the pecuniary or marketplace value of companionship which would have provided services equivalent to those received by the aged or infirm from hired companions, nurses or practical nurses is recoverable, as well as the marketplace value of advice and counsel such as could be purchased from a business advisor, therapist or trained counselor. The value of these services may be determined by an economist or actuary, and a dollar value may be reached which, in theory, compensates the survivors for the loss of the services. While everyone knows that the economic losses which are recoverable under this judicial interpretation of the Wrongful Death statute do not reflect the real losses which have been sustained, it is better than nothing. The only way to solve this problem, once and for all, is for the legislature to amend the Wrongful Death Act, and for the governor to sign it into law.

John Sakson is a Shareholder and Co-Managing Direcotr of  Stark & Stark’s in the firm's Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.

Prescription errors by pharmacies are a wide spread problem. Many pharmacies employ non-pharmacist assistants to actually fill the prescriptions. While these assistants are required to be under the supervision of the licensed pharmacists who are physically present at the pharmacy, the high volume of prescriptions that are filled at many pharmacies sometimes makes the supervision spotty.

The bottom line is that whenever you pick up a prescription, check the label on the bottle to make sure that the medication is what was prescribed. If it is a refill and you are familiar with what the pills look like, you should make sure that the pills look the same. Even if the label is correct, the pills may not be. Any discrepancies should be brought to the attention of the pharmacist before you take the medication. These simple steps may help you avoid a serious injury.

While most children who develop cerebral palsy have uneventful births, in a small percentage of children, however, their births are associated with a period of oxygen deprivation. The medical records in such cases will typically refer to perinatal asphyxia or hypoxic-ischemic encephalopathy. Where the period of oxygen deprivation at birth is due to medical malpractice, the injured child may have a right to monetary compensation for his injuries.

In the 1990s, the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics issued a report which had a clear purpose: to make it almost impossible to prove that any case of cerebral palsy was caused by oxygen deprivation at birth and, hence, by obstetrical negligence.

Fortunately for children with cerebral palsy who have been the victims of obstetrical malpractice, the advent of a new technology in the past five years has changed the legal landscape. So-called cool cap technology has become available in essentially all large hospitals offering care to newborns. This technology offers hope of salvaging more brain function in newborns who have been subjected to oxygen deprivation during the time of labor and delivery. In order to justify using this technology, however, the hospitals require that severe oxygen deprivation at or near birth be diagnosed. If the ACOG standards were used, no infants would get cool cap treatment. Thus, in practice in the real world the ACOG standards have been shown to be what they are: a legal stratagem rather than a scientific statement. A by-product of the use of the cool cap technology is that the medical records are now more honest. In the cases of children who receive cool cap treatment and who still go on to develop cerebral palsy, the medical records now permit a fairer assessment of whether obstetrical negligence was a cause of their brain injuries.