The more elegant and plausible solution is simply to allow the parent in such a case to bring a claim for her injury and join it to her child’s action — in the manner of a wrongful death or loss of consortium claim — and allow the parent to recover on this derivative claim if but only if the therapist is found to have breached his duty of care to the child.236 Nothing about the parent’s interests is folded into the content of the defendant’s duty or the determination of breach. These interests come in only at the remedial stage, once breach has been established on independent grounds. Thus this structure does not impose upon the therapist deliberative duties incompatible with his fiduciary role, convey to him that he must entertain a concern for third-party interests in the course of treating his patient, or risk incentivizing him to attend to such interests in cases where they conflict with the interests of his patient. In this way, the law can recognize and enforce the plaintiff’s underlying moral rights against injury in a more subtle way: It need not, and should not, predicate the plaintiff’s recovery on the defendant’s breach of any duty of care or other legal duty to her, as the Palsgraf perspective would insist.
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