DiDonato v. Wortman

• Decision Date: 28 July 1987
• Docket Number: No. 280A86,280A86
• Citation: 358 S.E.2d 489,320 N.C. 423
• Parties: Anthony Michael DiDONATO, as Administrator of the Estate of Joseph Edward DiDonato v. William J. WORTMAN, Jr., M.D., and John T. Hart, M.D.
• Court: North Carolina Supreme Court

Page 489

358 S.E.2d 489

320 N.C. 423

Anthony Michael DiDONATO, as Administrator of the Estate of Joseph Edward DiDonato v. William J. WORTMAN, Jr., M.D., and John T. Hart, M.D.

No. 280A86.

Supreme Court of North Carolina.

July 28, 1987.

James, McElroy & Diehl, P.A. by Gary S. Hemric and Judith E. Egan, Charlotte, for plaintiff-appellant.

Golding, Crews, Meekins & Gordon by John G. Golding and Andrew W. Lax, Charlotte, for defendants-appellees.

North Carolina Academy of Trial Lawyers by Douglas B. Abrams, Raleigh, amicus curiae.

EXUM, Chief Justice.

This is an action for the wrongful death of a stillborn child. Plaintiff administrator alleges that defendant doctors provided prenatal care to the child's mother, Norma DiDonato. Defendants estimated that the child would be born on 10 October 1982. On 26 October 1982 the child had not yet been born, and Mrs. DiDonato underwent an examination that revealed a healthy fetal heartbeat. Four days later the heartbeat had stopped and Mrs. DiDonato delivered a stillborn baby by cesarean section. Plaintiff alleges that defendants' negligence was a proximate cause of the child's stillbirth.

The sole question presented by this appeal is whether N.C.G.S. § 28A-18-2, North Carolina's Wrongful Death Act, allows recovery for the death of a viable but unborn child. We conclude that it does, and we therefore reverse the decision of the Court of Appeals. We hold, however, that the damages available in any such action will be limited to those that are not purely speculative. In addition, we hold that the action for wrongful death of a viable fetus must be joined with any action based on the same facts brought by the decedent's parents.

I.

In North Carolina, as in most states, actions for wrongful death exist solely by virtue of statute. In re Miles Estate, 262 N.C. 647, 138 S.E.2d 487 (1964). This Court's primary task, therefore, is to determine whether the state's wrongful death statute permits recovery for the death of a viable fetus.

Our Court of Appeals has twice denied actions for the wrongful death of a stillborn child under the current statute. Yow v. Nance, 29 N.C.App. 419, 224 S.E.2d 292, disc. rev. denied, 290 N.C. 312, 225 S.E.2d 833 (1976); Cardwell v. Welch, 25 N.C.App. 390, 213 S.E.2d 382, cert. denied, 287 N.C. 464, 215 S.E.2d 623 (1975). These holdings have not been disturbed by the General Assembly. We must be leery, however, of inferring legislative approval of appellate court decisions from what is really legislative silence. "Legislative inaction has been called a 'weak reed upon which to lean' and a 'poor beacon to follow' in construing a statute." 2A N. Singer, Sutherland Statutory Construction 407 (1984). "[It is] impossible to assert with any degree of assurance that [legislative inaction] represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice." Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615, 656 (1987) (Scalia, J., dissenting). We cannot assume that our legislators spend their time poring over appellate decisions so as not to miss one they might wish to correct. In fact, we have not found any evidence that the legislature has ever considered the particular problem before us in this case. Our inquiry, therefore, must focus on the words of the statute itself, the public policies underlying North Carolina's Wrongful Death Act, and common law principles governing its application. See Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) (Zappala, J., concurring).

A.

The Wrongful Death Act states, in pertinent part:

(a) When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable ... shall be liable to an action for damages.... The amount recovered in such action ... shall be disposed of as provided in the Intestate Succession Act.

(b) Damages recoverable for death by wrongful act include:

(1) Expenses for care, treatment and hospitalization incident to the injury resulting in death;

(2) Compensation for pain and suffering of the decedent;

(3) The reasonable funeral expenses of the decedent;

(4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected:

a. Net income of the decedent,

b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered (5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence;

(6) Nominal damages when the jury so finds.

N.C.G.S. § 28A-18-2 (1984).

In plain English, an action for wrongful death exists if the decedent could have maintained an action for negligence or some other misconduct if he had survived. Nelson v. United States, 541 F.Supp. 816 (M.D.N.C.1982). The real party in interest in any wrongful death action is the beneficiary for whom the recovery is sought. In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958); Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947). In the case of a stillborn fetus, the beneficiaries of a wrongful death action will necessarily be the child's parents, unless they too are dead. See N.C.G.S. § 29-15(3) (1984).

The facts in this case require us to determine whether the word "person" in the Wrongful Death Act includes a viable fetus. ¹ The statute does not provide a clear-cut answer to this question, but case law regarding recovery by children for fetal injuries is instructive. Tort claims brought by children to recover for fetal injuries are recognized in virtually every state, including North Carolina. Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968). It would be logical and consistent with these decisions, and would further the policy of deterring dangerous conduct that underlies them, to allow such claims when the fetus does not survive. Courts construing wrongful death statutes similar to N.C.G.S. § 28A-18-2 generally have concluded that a viable fetus is among the class of "persons" contemplated by the statute's authors. See Amadio, 509 Pa. at 224-25 n. 4, 501 A.2d at 1097-98 n. 4 (Zappala, J., concurring).

It is unlikely that the legislature would want to preclude recovery for the death of a fetus when recovery for a fetal injury not resulting in death is permitted. The unborn child's parents are the real parties in interest here, and they seek compensation for the complete loss of, rather than mere injury to, their offspring. Surely the legislature would find their claim as compelling as that of a child who seeks to recover for a prenatally inflicted but nonfatal injury, the consequences of which could vary from moderate to severe.

The legislature, moreover, has indicated that for purposes of the wrongful death statute, a "person" is someone who possesses "human life." The preamble to the most recent revision of N.C.G.S. § 28A-18-2 stated:

WHEREAS, human life is inherently valuable; and

WHEREAS, the present statute is so written and construed that damages recoverable from a person who has caused death by a wrongful act are effectively limited to such figure as can be calculated from the expected earnings of the deceased, which is far from an adequate measure of the value of human life; Now, therefore, [the damages available for the wrongful death of a person were redefined].

1969 N.C.Sess.Laws ch. 215, preamble (emphasis added). A viable fetus, whatever its legal status might be, is undeniably alive and undeniably human. It is, by definition, capable of life independent of its mother. A viable fetus is genetically complete and can be taxonomically distinguished from non-human life forms. Again, this is some evidence that a viable fetus is a person under the wrongful death statute.

We conclude that although the face of the wrongful death statute does not conclusively answer the question before us, case law concerning recovery for fetal injuries and the amending legislation quoted above both point toward acknowledging fetal personhood.

B.

The Anglo-American history of wrongful death actions begins with the English case of Baker v. Bolton, 170 Eng.Rep. 1033 (1808), which held that at common law there was no right to an action for wrongful death. Parliament responded to this holding--albeit somewhat belatedly--by enacting a wrongful death statute known as Lord Campbell's Act in 1846. 9 & 10 Vict., ch. 93. All fifty American legislatures have since followed suit. Prosser & Keeton on Torts 945 (1984).

North Carolina adopted its first wrongful death statute shortly before the Civil War. Revised Code of 1854, ch. 1, § 9. At that time, this Court probably would not have recognized an action to recover for the death of a stillborn child. Until 1946, nearly all states denied recovery to persons who had suffered prenatal injuries, whether they survived or not. Stetson, 274 N.C. at 155, 161 S.E.2d at 533. Following World War II, however, there occurred " 'the most spectacular abrupt reversal of a well-settled rule in the whole history of the law of torts.' " Id. (quoting Prosser on Torts § 56 (1964)). Courts everywhere began allowing children to bring actions for injuries they suffered prior to birth. In 1949, Minnesota became the first state to recognize an action for wrongful death brought on behalf of a stillborn...