DiDonato v. Wortman

• Decision Date: 01 April 1986
• Docket Number: No. 8526SC1015,8526SC1015
• Citation: 80 N.C.App. 117,341 S.E.2d 58
• Court: North Carolina Court of Appeals
• 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.

Page 58

341 S.E.2d 58

80 N.C.App. 117

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. 8526SC1015.

Court of Appeals of North Carolina.

April 1, 1986.

James, McElroy & Diehl by Gary S. Hemric, Charlotte, for plaintiff-appellee.

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

EAGLES, Judge.

The only question presented by this appeal is whether a viable child en ventre sa mere who dies as a result of a third party's negligence may obtain civil redress under our wrongful death statute, G.S. 28A-18-2. On appeal, plaintiff has apparently abandoned his analogous non-statutory claim for "wrongful deprivation of life."

The Supreme Court has not passed directly on the question before us. In Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966), the court reserved the question, but held that the speculative nature of damages required dismissal of plaintiff's action. The court has apparently recognized that a physician rendering prenatal care owes some duty of care to a fetus in utero, provided there is a live birth. Azzolino v. Dingfelder, 71 N.C.App. 289, 297, 322 S.E.2d 567, 574 (1984) [explaining Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968) ], aff'd in part, rev'd in part, 315 N.C. 103, 337 S.E.2d 528 (1985), reh'g denied, --- N.C. ---, --- S.E.2d ---- (1986). In reversing in Azzolino, the Supreme Court simply assumed arguendo that this duty existed, over dissent. Id. (Martin, J., dissenting in part). As in Gay, the Azzolino decision turned chiefly on the speculative nature of damages, not the legal definition of "person."

In 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), this court expressly held that a child must be born alive to be recognized as a "person" within the meaning of G.S. 28-173, now G.S. 28A-18-2. We did so upon careful review of the legislative history and authority of other jurisdictions, holding that creation of a right of action for wrongful death of an unborn fetus was an appropriate subject for legislative action, not judicial construction. We followed Cardwell in 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). But see Perry v. Cullipher, 69 N.C.App. 761, 318 S.E.2d 354 (1984) (rejecting contention that no right of action exists for desecration of grave of stillborn fetus). In Stam v. State, 47 N.C.App. 209, 267 S.E.2d 335, 1980, aff'd in relevant part, 302 N.C. 357, 275 S.E.2d 439 (1981), we held that, even upon a liberal construction, a fetus was not a "person" enjoying unlimited protection under N.C. Const. Art. I, Section 1 and Section 19. Reviewing the common law in Stam, we noted that property rights accorded to the unborn were always subject to live birth as a condition precedent. We are also advertant to the United States Supreme Court's ruling that the word "person" in the Fourteenth Amendment does not include the unborn. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, reh'g denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). These precedents are persuasive.

While panels of this court are not strictly controlled by the decisions of other panels, we generally follow our Court's decisions under the doctrine of stare decisis. See State v. Sanderson, 60 N.C.App. 604, 300 S.E.2d 9, disc. rev. denied, 308 N.C. 679, 304 S.E.2d 759 (1983). We certainly do not have authority to overrule our Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). We therefore must hold, on the authority of Gay v. Thompson, supra, and following Cardwell, Yow, and Stam, that the trial court correctly dismissed plaintiff's action.

The issue is properly a subject for legislative attention and ought not be the subject of judicial intervention. We note that the General Assembly recently considered a bill that would have made it a crime to knowingly or recklessly cause the death of a viable fetus. H.B. 1276, 1985 General Assembly. While not directly on point in the instant case, the fact that this bill failed to pass seems to suggest a continuing legislative refusal to expand the concept of "person" beyond the current state of the law. The judiciary should not assume a more active role on what is essentially a legislative issue.

We are aware of the conflicting policy considerations raised by this case, including strong arguments for changing existing law. However, this Court is not the proper forum for making these changes. The decision of the trial court is therefore

Affirmed.

ARNOLD, J., concurs.

PHILLIPS, J., dissents.

PHILLIPS, Judge, dissenting.

In my opinion G.S. 28A-18-2 as now written authorizes plaintiff's action and Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966) has no application to this case and the order appealed from should be reversed.

A "person," according to the common understanding of mankind if the dictionaries they use are any guide, is simply a human being. Nothing in the Wrongful Death Act or its history suggests that the word meant anything else to the General Assembly, but much indicates that it did not. The General Assembly frequently exercises its power to give words and phrases special meaning and if it had intended for the word "person" to have a limited application, it could have easily accomplished that purpose. Since there is no reason for supposing that the General Assembly intended the act to apply to less than all the human beings in this state, I view the restrictive definition coined by a panel of this Court in 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) as a judicial interpolation that should be disavowed, rather than followed. A viable, healthy 12-pound boy at term immediately before birth is certainly a human being and plaintiff's action is authorized in my opinion under both the language and spirit of the act.

Gay v. Thompson arose under G.S. 28-173, 174, our former Wrongful Death Act, and its only possible bearing on this case is that the court's failure there to recognize that ascertainable damages could result from the wrongful death of viable, healthy children ready to be born was one of the reasons the Legislature replaced G.S. 28-174, the damages part of the old act, with what is now subsection (b) of G.S. 28A-18- 2. Other reasons for that step were holdings denying recovery for the deaths...