501 A.2d 1085 (Pa. 1985), Amadio v. Levin

Citation:501 A.2d 1085, 509 Pa. 199
Opinion Judge:Author: Papadakos
Party Name:Joseph AMADIO and Regina Amadio, Administrators Ad Prosequendum of the Estate of Jennifer Amadio, Deceased, And In Their Own Right, as Husband and Wife, and Parents and Natural Guardians of Jennifer Amadio, Deceased, Appellants, v. Harvey M. LEVIN, M.D., Daniel J. Columbi, M.D., Martin Zeluck, M.D. and Wesley W. Bare, M.D., Appellees.
Case Date:December 04, 1985
Court:Supreme Court of Pennsylvania

Page 1085

501 A.2d 1085 (Pa. 1985)

509 Pa. 199

Joseph AMADIO and Regina Amadio, Administrators Ad

Prosequendum of the Estate of Jennifer Amadio, Deceased, And

In Their Own Right, as Husband and Wife, and Parents and

Natural Guardians of Jennifer Amadio, Deceased, Appellants,


Harvey M. LEVIN, M.D., Daniel J. Columbi, M.D., Martin

Zeluck, M.D. and Wesley W. Bare, M.D., Appellees.

Supreme Court of Pennsylvania.

December 4, 1985

Argued Jan. 23, 1985.

[509 Pa. 200] Jill M. Follows, Alan Schwartz, Philadelphia, for appellants.

Stanley P. Stahl, Gregory B. Hook, Susan M. Cohen, Philadelphia, for appellees.




Once again this Court is called upon to decide whether a right of recovery exists under our Wrongful Death Act 1 and Survival Statute 2 on behalf of a stillborn child who died as a result of injuries received en ventre sa mere.

The facts are not complicated and can be quickly summarized. Jennifer Amadio was the full-term unborn child of Joseph and Regina Amadio (Appellants), due to be delivered on September 28, 1979. On October 15, 1979, Jennifer was born stillborn at Methodist Hospital, Philadelphia, Pennsylvania. At delivery, Jennifer was a fully matured and perfectly proportioned seven pound eight ounce female.

On September 22, 1981, Joseph and Regina Amadio, in their own right, and as Administrators Ad Prosequendum of the estate of Jennifer, filed a Complaint in Trespass in the Court of Common Pleas of

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Philadelphia County, against Mrs. Amadio's obstetricians, Harvey M. Levin, M.D., Daniel J. Columbi, M.D., Martin Zeluck, M.D., and Wesley W. Bare, M.D. (Appellees) claiming that, as a result of their negligence, there were incurred medical expenses, burial expenses, a loss of earnings, loss of enjoyment of life, and physical pain and mental anguish.

Preliminary Objections to the Complaint were filed by Appellees arguing that Appellants' trespass action seeking recovery for injuries done to Jennifer Amadio en ventre sa mere was prohibited as a matter of law. By Opinion and [509 Pa. 202] Order of February 26, 1982, the Honorable Joseph P. Craig sustained the Preliminary Objections and dismissed Appellants' wrongful death and survival action. A timely appeal to Superior Court, 324 Pa.Super. 592, 472 A.2d 242, followed and by its Per Curiam Order of February 10, 1984, Superior Court affirmed the order of the trial court. We accepted allocatur to review our prior decisions and evaluate their viability in light of the current advance of medical knowledge and in light of the majority trend in our sister states in permitting survival and wrongful death actions on behalf of stillborns injured en ventre sa mere.

Prior decisions of this Court, Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981), Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966), and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964), uniformly held that in order for a survival action to lie, there must be an independent life in being, surviving birth, which could have brought the action prior to death. Five reasons were usually cited for limiting survival and wrongful death actions to children born alive.

First, the Court surmised that the real objective of such a lawsuit was to compensate the parents of the deceased child for their emotional distress, and that since parents already had the ability in their own right to institute such an action, it would only be duplication to permit parents to file a second action on behalf of the estate of the child.

Second, because wrongful death actions are derivative, and since the Court refused to acknowledge that a stillborn child was an individual under the wrongful death or survival statutes, it was concluded that the Acts were not intended to provide for recovery by the estate of a stillborn child.

Third, extending causes of actions to the estates of stillborn children was felt to increase problems of causation and damages.

Fourth, the prior cases arose out of an era when most jurisdictions did not permit the filing of such actions. Prior [509 Pa. 203] to our Carroll decision in 1964, only seven jurisdictions recognized the cause of action. (See our Footnote 3).

Fifth, it was reasoned that since only children born alive may take property by descent under our Intestate Laws, the Court assumed that the Legislature had already limited the creation of causes of actions to those instances where the existence or estate of a child was recognized by the laws of intestacy.

Appellants urge us to abandon these prior decisions requiring survival at birth in order to maintain an action for fatal injuries caused en ventre sa mere, and to adopt the majority view that requires only that the death dealing injuries occur when the child is viable en ventre sa mere. Upon thorough review of our prior holdings, the change in the attitude of our sister states permitting these actions, and Appellants' arguments that medical knowledge has advanced since we first formulated our position against the maintenance of those actions, we conclude that the time has arrived for us to join our twenty-eight sister states and the District of Columbia and recognize that survival and wrongful death actions lie by the estates of stillborn children for fatal injuries they received while viable children

Page 1087

en ventre sa mere 3 . As will be seen, the reasons formerly relied on [509 Pa. 204] to deny maintenance of such actions no longer are persuasive.

We have, since our decision in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), recognized that a child en ventre sa mere is a separate individual from the moment of conception, and have permitted that child to sue for injuries received during gestation when the child is born alive. Implicit in our holding in Sinkler is the acknowledgement that a child en ventre sa mere is an individual with the right to be free of prenatal injury. If a child en ventre sa mere is an individual at the time of its injury, then, a fortiori, the child is also an individual when those injuries cause its death, and it makes no difference in liability under the wrongful death and survival statutes whether the child dies of the injuries just prior to or just after birth.

In short, the "live birth" or "still birth" of a child will no longer be determinative of that child's status as an individual under our survival or wrongful death statutes. To be consistent with Sinkler and the body of medical knowledge underpinning it, we acknowledge a child en ventre sa mere to be an "individual," "having existence as a separate creature from the moment of conception." Sinkler, 401 Pa. at 273, 164 A.2d at 96. Henceforth, injuries received by a child while en ventre sa mere can form the basis for survival or wrongful death actions as maintained on behalf of a child born alive. Live birth can no longer be a limiting prerequisite to the maintenance of such an action. This is [509 Pa. 205] consistent with Mr. Justice Larsen's dissent in Scott v. Kopp, Id., where he argues against drawing a line at the birth of a child, its viability, or some other arbitrary period of gestation, and instead concludes that the action should proceed to trial and let the orderly production of evidence by the adversaries prove or disprove causation, injury and damages in each case.

As we have observed in the past, our wrongful death and survival statutes create a derivative cause of action, but those statutes are remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act, which is to provide a cause of action against one whose tortious conduct caused the death of another. By limiting the right to bring an action to those children born alive, we were giving the statute a narrow reading and thereby perpetuating the much

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criticized rule of the common law which made it "more profitable for the defendant to kill the plaintiff than to scratch him." Prosser, Law of Torts, § 127 (4th Ed.1971); O'Grady v. Brown, 645 S.W.2d 904 (Missouri, 1983).

By abandoning the former arbitrary "live birth" requirement, we feel a liberal construction of the wrongful death and survival statutes will be accomplished. No longer will we sanction a legal doctrine that enables a tortfeasor who causes death to escape full liability, while rendering one whose wrongdoing is less severe in its consequences answerable in a wrongful death or other negligence action merely because his victim survives birth. Hopkins v. McBane, 359 N.W.2d 862 (N.D., 1984).

Our prior concern that such actions create difficulties in establishing proof, upon closer examination, must also give way. Difficulty in obtaining proof of the wrong should never bar the right to bring an action, once it is determined that a cause of action does, indeed, exist. Our caution in extending the right of suit on behalf of the estates of stillborn children may have partly had to do with our unfamiliarity with the problems that this type of litigation would spawn, but any such difficulties in proving damages [509 Pa. 206] cannot be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who survived delivery for a few minutes, hours or days. These actions have been part of our law for some time, and we are confident that the experience gained from handling such matters has matured our bench to the point when we can now extend the application of these cases to cases where the child is born dead due to death causing injury while en ventre sa mere.

This Court's former view that the real...

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