Fortes v. Ramos
| Decision Date | 12 March 2002 |
| Docket Number | C.A. 96-5663 |
| Parties | DONNA M. FORTES and ANTONIO M. FORTES, Individually, and as Beneficiaries and as Natural Parents and Next Friends of Baby Girl Fortres v. DONALD A. RAMOS, M.D., FRED A. BROSCO, M.D., BROADWAY OB/GYN, and JOHN DOE, M.D. |
| Court | Rhode Island Superior Court |
DECISION
The defendants have filed motions for summary judgment. After hearing on the motions, this justice took the matter under advisement.
This medical malpractice action arises out of the death of a fetus that died in utero due to a prolapsed cord. The plaintiffs Donna and Antonio Fortes (Fortes) allege that the physicians were negligent when they failed to diagnose Donna Fortes's incompetent cervix and to perform a cerclage procedure that plaintiffs contend would have prevented the fetus' premature delivery and death. This was Donna Fortes's third fetus to die in utero. The plaintiffs allege a breach of the duties of Donald A. Ramos, Fred A Brosco, Broadway OB/GYN, and John Doe (defendants) owed to the mother, Donna Fortes, and to the fetus, Baby Girl Fortes to properly diagnose and treat them. Donna and Antonio Fortes, the father, each has brought negligence-based claims for emotional distress. Donna Fortes has brought an alternative claim for bodily injury and for the mental suffering attendant to that bodily injury. The alternative nature of the claims seems, in part, a response to the questions surrounding the gestational period and the viability of the fetus – something that is hotly contested by the parties. Donna Fortes and Antonio Fortes, as the parents and legal beneficiaries of Baby Girl Fortes, have also brought claims under the Wrongful Death Act. See G.L. § 10-7-1, Liability for Damages for Causing Death. Specifically, they have brought claims for pecuniary damages and loss of consortium pursuant to G.L § 10-7-1.1 and 2, Pecuniary Damages & Persons Who May Bring Actions--Minimum Recovery Period.
In this motion for summary judgment, the defendants assume the plaintiffs' claims of medical malpractice to be true. For purposes of this motion, then, it is undisputed that the defendants were negligent and that their negligence resulted in bodily harm to the plaintiff Baby Girl Fortes or, assuming Baby Girl Fortes was not viable, to the plaintiff Donna Fortes, whose living tissue was destroyed as a result of the prolapse.
There are several aspects to the motion. Each claim is addressed separately below.
The defendants contend that plaintiffs cannot demonstrate that Baby Girl Fortes was a viable fetus at the time their negligence caused its death. They contend, therefore, that there has been no death of a "person" and, accordingly, no an action can lie under any of the various aspects of Rhode Island's wrongful death statute. As part of their objection, the plaintiffs argue that the defendants have not preserved non-viability as an affirmative defense under R.I. R.Civ. P. 8 (c) and 12(h).
Rule 8(c) provides: "[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense." The first question arising under Rule 8(c) is whether the non-viability of the fetus is an affirmative defense in the context of the Wrongful Death Act. This justice agrees with the defendants that it is not.
An affirmative defense is one of avoidance rather than denial. In the Interest of C.M., et al, 996 S.W. 2d 269, 270 (Tex. Ct. App. 1st Dist. 1999). It directly or implicity concedes the basic position of the plaintiff, but asserts that the plaintiff is not entitled to prevail because he or she is precluded for some other reason. Choice Hotels International, Inc. v. Madison Three, Inc., 83 F.Supp. 2d 602, 603 (D.Md. 2000) (citing Maryland law); Accord Walsh v. West Valley Mission Community College District, 66 Cal.App. 4th 1532 (1998) ("an affirmative defense is one which sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought"). Because the Wrongful Death Act is a statutory remedy designed to allow recovery for the death of a person only, proof that the victim was a "person" is necessarily part of the plaintiffs' prima facie case. The complaint affirmatively asserted viability – and quite properly so, given that the viability of the fetus is essential to recovery. Miccolis v. AMICA Mutual Insurance Company et al, 587 A.2d 67, 71 (R.I. 1991). Defendants' present denial of that factual allegation is merely a denial of an element of the Forteses' prima facie case and therefore constitutes a general defense, not an affirmative one. For that reason, non-viability of the fetus need not have been plead in response to the complaint except as a general denial of fact or as something about which the defendant had no knowledge.
The next question is whether the defendants have, by their answers, admitted or denied viability. Fair readings of the defendants' answers shows that they denied knowledge of the fetus' viability and have left plaintiffs to their proof in this regard. Accordingly, this justice must proceed to address the merits of the questions raised by the fetus' viability or non-viability.
The Rhode Island Supreme Court has specifically held that a non- viable fetus is not a person for purposes of the Wrongful Death Act. Miccolis, 587 A.2d at 71. Thus the defendants are correct in their contention that if Baby Girl Fortes was not viable, then the Fortes cannot recover under the Act. The medical records, however, show conflicting information concerning the gestational period, and the plaintiffs have produced the affidavit of an expert physician who has opined that that fetus was indeed viable. Because the plaintiffs have demonstrated there exists a genuine dispute about the question of viability, the motion must be denied insofar as it rests on these grounds. See Marchetti v. Parsons, 638 A.2d 1047 (R.I. 1994); Woodland Manor III. Associates v. Keeney, 713 A.2d 806 (R.I. 1998).
The defendants further contend that even if Baby Girl Fortes were viable, they are entitled to a partial judgment on any Wrongful Death Act claims other than those brought pursuant to G.L. 1956 § 10-7-1.1. The defendants point to G.L. 1956 §§ 10-7-2 and 7 as requiring the plaintiffs' claims to have been brought by an executor or administrator of Baby Girl Fortes' estate. It is undisputed that this action has not been brought by either of the Fortes as representative of the estate of Baby Girl Fortes.
A review of the operative complaint shows clearly that Donna and Antonio Fortes have brought the action as the parents and beneficiaries of Baby Girl Fortes and that the damages they claim are those contemplated by G.L. 1956 § 10-7-1.1 (pecuniary damages) and G.L. 1956 § 10-7-1.2 (loss of consortium). A review of the operative complaint shows also that the Fortes have not made any claim for medical expense and diminution of earning power recoverable under G.L. 1956 § 10-7-5, or for pain and suffering recoverable under G.L. 1956 § 10-7-7.
The rules of statutory construction are well settled. Statutes that are not inconsistent with each other and relate to the same subject matter should be considered together so that they will harmonize with each other and be consistent with their general object and scope. Berthiaume v. School Committee of Woonsocket, 397 A.2d 889, 893 (R.I. 1979). Where two apparently inconsistent provisions are contained in a statute, every effort should be made to construe and apply the provisions as consistent. Matter of Falstaff Brewing Corp. Re: Narragansett Brewery Fire, 637 A.2d 1047 (R.I. 1994) (citing Brennan v. Kirby, 529 A.2d at 633 637 (R.I. 1987)). When G.L.1956 §§ 10-7-2 and 3 are read together, it becomes apparent that where an estate has not been opened or if the administrator or executor has failed to bring a claim under the Wrongful Death Act, then the beneficiaries may bring a direct action and are entitled to those damages recoverable under both G.L. 1956 §§ 10-7-1.1 and 1.2, as well as the minimum recovery contained in a G.L. 1956 § 10-7-2. Insofar as the motion for summary judgment rests on these grounds, the motion must be denied.
The defendants also move for summary judgment on Donna Fortes's claims for thought-based suffering. Specifically, they move for summary judgment on her claim for the mental anguish caused by the bodily harm she experienced as a result of the prolapse, i.e. the loss of her fetus. They also move for summary judgment on her claim for negligent infliction of emotional distress. The reasoning behind the defendants' legal arguments has far-reaching implications.
It is undisputed that the emotional turmoil suffered by Donna Fortes when she lost the fetus did not result in medically established, objectively measurable physical symptoms. The defendants argue that they are entitled to summary judgment in the absence of evidence that the emotional harm suffered by Donna Fortes resulted in such symptoms. The defendants contend that Rhode Island's physical symptomatology requirement applies to all manner of claims for mental anguish including those in which the mental anguish is a consequence of a bodily injury or the invasion of a legal interest. They contend, therefore, that the physical symptomatology requirement should be applied to cases of death of a fetus by negligence regardless of whether the fetus was or was not viable at the time it was harmed and regardless of whether the claim is cast as one for bodily injury or as one for negligent infliction of emotional distress. In turn, the plaintiffs challenge the...
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