Justus v. Atchison

• Decision Date: 08 June 1977
• Citation: 19 Cal.3d 564,139 Cal.Rptr. 97,565 P.2d 122
• Court: California Supreme Court
• Parties: , 565 P.2d 122 Linda Sue JUSTUS et al., Plaintiffs and Appellants, v. Joseph ATCHISON et al., Defendants and Respondents. Karen K. POWELL et al., Plaintiffs and Appellants, v. Joseph ATCHISON et al., Defendants and Respondents. L.A. 30574, L.A. 30575.

Page 97

139 Cal.Rptr. 97

19 Cal.3d 564, 565 P.2d 122

Linda Sue JUSTUS et al., Plaintiffs and Appellants, v. Joseph ATCHISON et al., Defendants and Respondents.

Karen K. POWELL et al., Plaintiffs and Appellants, v. Joseph ATCHISON et al., Defendants and Respondents.

L.A. 30574, L.A. 30575.

Supreme Court of California, In Bank.

June 8, 1977.

Battaglia Law Corp. and Joseph C. Battaglia, Los Angeles, for plaintiffs and appellants.

George O. Fekete, a Professional Law Corp., and George O. Fekete, Anaheim, as amici curiae on behalf of plaintiffs and appellants.

Benton, Orr, Duval & Buckingham, Edwin Duval, Ventura, Archbald, Zelezny & Spray and William J. Stewart, Santa Barbara, for defendants and respondents.

MOSK, Justice.

The principal issue in this case is whether a stillborn fetus is a 'person' within the meaning of the wrongful death statute. (Code Civ.Proc., § 377.) An additional question presented is whether the pleadings are sufficient to state a cause of action for emotional shock under the rule of Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. We conclude that both issues should be decided in the negative, and hence that the judgments should be affirmed.

The appeal arises from two factually similar actions for medical malpractice and wrongful death filed in the Santa Barbara Superior Court, each predicated on the stillbirth of a fetus occurring in the course of delivery. In case No. 101312 plaintiffs Linda Sue Justus and her husband Jeffrey A. Justus name as defendants their attending physician Joseph Atchison, M.D., an assisting physician, and the Goleta Valley Community Hospital. In case No. 101198 the plaintiffs are Karen K. Powell and her husband Robert F. Powell, and the defendants are the same Dr. Atchison, a different assisting physician, and the same hospital.

We are concerned here with the second and third causes of action of these complaints. In the second cause of action of each complaint both plaintiffs, as sole heirs, seek to state a cause of action for the wrongful death of their unborn child. In the third cause of action of each complaint the plaintiff husband seeks to state a cause of action for the shock he allegedly experienced in witnessing that death. ¹

After four unsuccessful attempts by plaintiffs in each case to plead legally sufficient causes of action for wrongful death and shock, defendants' general demurrers on those counts were sustained without leave to further amend. In each case the court thereupon entered judgments of dismissal against plaintiffs as to the second and third causes of action. Plaintiffs appealed from such judgments, and the appeals were ordered consolidated.

Before addressing the merits we consider whether the appeals should have been dismissed because they have been taken from judgments which do not dispose of all the causes of action set forth in the complaint. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 153, 133 Cal.Rptr. 10, 554 P.2d 330.) It is settled that the rule requiring dismissal does not apply when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 3, 122 Cal.Rptr. 745, 537 P.2d 865; Wilson v. Sharp (1954) 42 Cal.2d 675, 677, 268 P.2d 1062; Young v. Superior Court (1940) 16 Cal.2d 211, 214--215, 105 P.2d 363; Rocca v. Steinmetz (1922) 189 Cal. 426, 428, 208 P. 964.) The judgments now before us disposed in each case of all the causes of action in which the husbands are plaintiffs. It is irrelevant that the wives joined with the husbands as plaintiffs in one of these causes of action. This circumstance does not affect the reason for the exception, i.e., that it better serves the interests of justice to afford prompt appellate review to a party whose rights or liabilities have been definitively adjudicated than to require him to await the final outcome of trial proceedings which are of no further concern to him. Here the plaintiff husbands have been excluded from any possibility of relief by the rulings complaied of; the exception therefore governs, and the appeals will lie.

I

The allegations of both complaints on the wrongful death cause of action are similar. In each, it is alleged in substance that defendants were engaged to provide obstetrical and surgical care in the delivery of plaintiffs' then unborn child; that complications arose which defendants knew or should have known required their constant attention; ² that defendants nevertheless negligently failed to examine, diagnose, and treat the fetus, and in particular 'did in fact abandon' the fetus despite their knowledge of its 'worsening and critical condition'; that as a proximate result thereof the fetus suffered injuries from which it died; and that defendants were further negligent in failing to use available techniques to revive the fetus. ³

Each complaint further alleges that the fetus was normal in all respects and would have survived but for defendants' negligence; we may assume that the pregnancy had gone to full term, although neither complaint expressly so states. Finally, while in each case it is asserted on information and belief that the fetus died 'immediately prior to (its) complete severance from its mother,' it is nevertheless conceded by plaintiffs that each fetus was in fact stillborn.

Plaintiffs advance several reasons to support their contention that the foregoing allegations state a cause of action for wrongful death. They invoke the 'weight of authority,' pointing to the fact that 25 states now recognize a cause of action for the wrongful death of a fetus, ⁴ while at most 12 reject it. ⁵ Next plaintiffs urge that when a developing fetus has reached the stage of 'viability'--i.e., when it has become capable of living outside of its mother's body--its biological self-sufficiency should be reflected by according it legal independence as well. They further reason as follows: California permits an action for prenatal injuries by a child who survives such injuries and is born alive (Scott v. McPheeters (1939) 33 Cal.App.2d 629, 92 P.2d 678, 93 P.2d 562); a wrongful death action would lie if such a child were to die shortly after its birth because of those injuries (see, e.g., Wolfe v. Isbell (1973) 291 Ala. 327, 280 So.2d 758 (child died 50 minutes after birth); and it is therefore 'illogical' to deny a similar wrongful death action in the case of a fetus which suffers identical prenatal injuries but dies shortly before its birth. ⁶ Finally, plaintiffs claim that rejection of such a cause of action 'violates public policy' because it gives tortfeasors who inflict grave injuries an incentive to refrain from any efforts to save their victims' lives.

Plaintiffs also undertake to refute the principal arguments that have been made against recognizing a cause of action for the wrongful death of a fetus. Thus plaintiffs deny that the damages for such wrongful death are in effect recoverable in the mother's cause of action for her personal injuries: the latter award cannot include compensation for the death of the fetus (Thomas v. Gates (1899) 126 Cal. 1, 7--8, 58 P. 315) or for the deprivation of its society and comfort had it lived; nor, obviously, is the father of the fetus tereby compensated for his own loss. For the same reasons it is asserted there is no risk of double recovery in this situation: procedural devices such as joinder and appropriate jury instructions are available to insure against confusion of these distinct interests. Plaintiffs also reject the argument that damages for the death of a fetus are too speculative to calculate: not only are problems of proof an inadequate ground for denying a remedy outright, but the damages here sought are no more difficult to determine than in the case in which the fetus dies shortly after birth from prenatal injuries; in either event the principal ingredient in the award is the loss of future consortium, an item long held recoverable in this state in actions for the wrongful death of a minor child (see, e.g., Bond v. United Railroads (1911) 159 Cal. 270, 286, 113 P. 366).

We have carefully considered these arguments, each of which finds support in one or more of the out-of-state decisions recognizing a cause of action for the wrongful death of a fetus (fn. 4, Ante). They are not all equally convincing, and some are put in serious question by the decisions rejecting this cause of action (fn. 5, Ante) and by the legal scholars. ⁷ But we need not enter this debate, less still attempt to settle it. The considerations advanced by plaintiffs would be relevant if we were called upon to decide whether California should adopt the proposed cause of action as a matter of judgemade law; they are not persuasive when, as here, the cause of action for wrongful death in this state is a pure creature of statute.

The distinction is illustrated by our decision in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. At issue there was whether California should adhere to the rule that a spouse has no cause of action for loss of consortium caused by negligent injury to the other spouse. The rule had no statutory foundation, but originated in two earlier decisions of this court. We considered a variety of arguments similar and in some instances identical to those urged herein (Id., at pp. 389--408, 115 Cal.Rptr. 765, 525 P.2d 669), and held that a cause of action for loss of spousal consortium should be recognized in California. (Id. at p. 408, 115 Cal.Rptr. 765, 525 P.2d 669.) But we made it clear that we felt free to do so because the rule under review was a judicial creation: rejecting a claim that it could be changed only by the Legislature, we stressed the duty of the courts to modify common law doctrine to keep pace with new conditions. (Id. at pp. 393--394, 115 Cal.Rptr. 765, 525 P.2d 669.) The question before us, we said, was whether the...