Brown v. Green, Civ. A. No. 90-847-LFO.
Citation | 767 F. Supp. 273 |
Decision Date | 13 June 1991 |
Docket Number | Civ. A. No. 90-847-LFO. |
Court | U.S. District Court — District of Columbia |
Parties | Gresha BROWN, et al., Plaintiffs, v. Richard P. GREEN, M.D., Defendant. |
Ashcraft & Gerel by Michelle A. Parfitt, James M. Hanny, Washington, D.C., for plaintiff.
Brault, Graham, Scott & Brault, Laurence T. Scott, Washington, D.C., for defendant.
An Order of March 8, 1991 granted defendant Green's motion for summary judgment and dismissed the complaint for reasons to be stated in a forthcoming memorandum. Upon reconsideration, that Order will be vacated and defendant's motion for summary judgment denied.
Plaintiffs allege that Green, a gynecologist practicing in the District of Columbia, provided plaintiff Gresha Brown with negligent prenatal care and thereby caused the premature birth and subsequent death of the twins that Brown was carrying. In his summary judgment motion, Green implicitly concedes that there is a genuine issue as to whether he breached the relevant standard of care. It is, however, undisputed that Green's alleged negligence must have occurred before the fetuses were viable, at a time when "their organs, particularly the lungs, were not sufficiently developed to support life, either independently or with artificial aid." Affidavit of Anne B. Fletcher; see also Autopsy Reports, May 31, 1989 (Defendant's Exhibit 2). Thus, the question presented here is whether a previable fetus born alive but dying soon after birth may recover for injuries caused by a physician's negligent care.
See Greater Southeast Community Hospital v. Williams, 482 A.2d at 396 (citation omitted). This rationale is equivocal on the question here. On the one hand, it notes that criminal and property law regard "a child en ventre sa mere ... as a human being ... from the moment of conception." Bonbrest, 65 F.Supp. at 140. On the other hand, it treats a fetus as "a person separate from its mother" because the fetus "has, if viable, its own bodily form and members, manifests all of the anatomical characteristics of individuality, possesses its own circulatory, vascular and excretory systems and is now capable of being ushered into the visible world." Id. at 141 (emphasis added and deleted). In other words, while Bonbrest's "legal argument" suggests that viability is not important, its "medical argument" suggests that it is, and the D.C. Court of Appeals has yet to resolve the tension between these two arguments.
Green contends that in the absence of any clearer indication from the D.C. Court of Appeals that court should be deemed to follow the majority rule that a fetus may not recover for injuries sustained before viability. See, e.g., Estate of Baby Foy v. Morningstar Beach Resort, Inc., 635 F.Supp. 741 (D.V.I.1986); Humes v. Clinton, 246 Kan. 590, 594-95, 792 P.2d 1032, 1036 (1990); Milton v. Cary Medical Center, 538 A.2d 252 (Me.1988); Rambo v. Lawson, 799 S.W.2d 62 (Mo.1990) (en banc); Coveleski v. Bubnis, 391 Pa.Super. 409, 571 A.2d 433 (Pa.Super.), appeal granted, 525 Pa. 656, 582 A.2d 323 (1990). Plaintiffs, however, point out that Maryland and Virginia have joined a growing trend towards recognizing a cause of action for injuries sustained before viability if, as here, the fetuses are born alive. See Group Health Ass'n v. Blumenthal, 295 Md. 104, 116-19, 453 A.2d 1198, 1206-07 (1983); Kalafut v. Gruver, 239 Va. 278, 284-85, 389 S.E.2d 681, 684 (1990); see generally Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth. Time for a New Framework, 22 J. Family Law 677, 677 n. 18 (1984).
As a general rule of thumb, the decisions of nearby jurisdictions are the most persuasive indication of how a particular state will decide a common law issue, and, at least with respect to Maryland law, that rule of thumb has been elevated into a formal principle. The District of Columbia by statute incorporates Maryland's common law as it stood on February 27, 1801. See D.C.Code § 49-301 (1990). Consequently, the D.C. Court of Appeals has found Maryland law to be "especially persuasive authority." Napoleon v. Heard, 455 A.2d 901, 903 (D.C.1983); accord Watkins v. Rives, 125 F.2d 33, 35 (D.C.Cir.1941) (...
To continue reading
Request your trial-
Hudak v. Georgy
...Ala. 327, 280 So.2d 758 (1973) (permitting action for wrongful death where child died 50 minutes after birth); see also, Brown v. Green, 767 F.Supp. 273 (D.D.C.1991) (previable fetus born alive but dying soon after birth may recover for injuries caused by negligent care). The Doctors' argum......
-
Abdallah v. Callender
...that the doctor also may owe a duty of care to the baby does not extinguish the duty of care owed to the mother. See also Brown v. Green, 767 F.Supp. 273, 275 (D.D.C.) (following Coughlin to find a cause of action on behalf of mother irrespective of cause of action in baby), order vacated o......
-
Brown v. Green
...781 F. Supp. 36 ... Gresha BROWN, et al., Plaintiffs, ... Richard P. GREEN, M.D., Defendant ... Civ. A. Nos. 90-0847-LFO, 91-0785-LFO ... United States District Court, District of Columbia ... December 24, 1991.781 F. Supp. 37 ... ...
-
Abdallah v. Callender
...that the doctor also may owe a duty of care to the baby does not extinguish the duty of care owed to the mother. See also Brown v. Green, 767 F. Supp. 273, 275 (D.D.C.) (following Coughlin to find a cause of action on behalf of mother irrespective of cause of action in baby), order vacated ......