Gentry v. Gilmore

• Decision Date: 29 January 1993
• Citation: 613 So.2d 1241
• Court: Alabama Supreme Court
• Parties: Melvin GENTRY and Kathleen Gentry v. Dr. Keith GILMORE. 1910254.

Page 1241

613 So.2d 1241

Melvin GENTRY and Kathleen Gentry v. Dr. Keith GILMORE.

1910254.

Supreme Court of Alabama.

Jan. 29, 1993.

Rehearing Denied March 5, 1993.

Shay Samples and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellants.

Michael K. Beard and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee.

PER CURIAM.

This case involves the alleged wrongful death of a 13-week fetus. The first legal question presented is whether the trial court erred in refusing to instruct the jury, in substance, that the father could sue for the wrongful death of the fetus and that the viability of the fetus at the time of the injury was irrelevant. ¹ Because we conclude that the Wrongful Death Act does not provide a cause of action for the death of a nonviable fetus, we hold that the trial court did not err in refusing to instruct the jury as requested. The second question is whether the trial court abused its discretion in not allowing the plaintiffs to present certain testimony of an expert witness. We hold that it did not. Therefore, we affirm the judgment based on a jury verdict in favor of the defendant physician. Our holding is consistent with our decision in Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993), which involved substantially the same question.

FACTS

Melvin and Kathleen Gentry, husband and wife, sued Keith Gilmore, M.D., after he performed a dilatation and curettage (D & C) on Mrs. Gentry. Mr. Gentry sought damages for the wrongful death of a 13-week fetus, and Mrs. Gentry sought damages for her pain and discomfort, mental anguish, and emotional distress. The Gentrys appeal from a judgment based on a jury verdict in Dr. Gilmore's favor on both counts.

Dr. Gilmore first examined Mrs. Gentry on August 5, 1983, when she was admitted to East End Hospital in Birmingham complaining of flooding blood, passing clots, and cramping. Dr. Gilmore performed the D & C on August 6. An ultrasound test on August 8 revealed an apparently normal 11-week fetus. Mrs. Gentry miscarried on August 24. It is undisputed that, at the time of the miscarriage, the 13-week fetus was not viable, that is, it was not capable of living outside the womb.

Dr. Neil Wolfson, an obstetrician and gynecologist, testified at trial that Mrs. Gentry exhibited the classical signs of pregnancy at the time of her admission (tiredness, nausea, cramps, spotting); that her urine test was positive for pregnancy; and that a pelvic examination would have revealed that she was pregnant. Dr. Wolfson further testified that Dr. Gilmore should have ordered an ultrasound test before performing the D & C; that if he had done so, he would not have performed the D & C, which, Dr. Wolfson testified, in all medical probability contributed to the miscarriage; and that the ultrasound test would have revealed that Mrs. Gentry was experiencing only a threatened abortion, a pregnancy with bleeding, which is treated with medication and bed rest.

Dr. Gilmore testified that he did not perform an ultrasound test before he performed the D & C because he had diagnosed an inevitable abortion, meaning that the fetus would have died even had he not performed the D & C. He maintained that an ultrasound test was unnecessary. ² He based his diagnosis of an inevitable abortion on the fact that Mrs. Gentry was bleeding and that her cervix was dilated, which indicated that the fetus was not living.

The Gentrys presented Dr. Robert Eichelberger, the radiologist who interpreted the ultrasound test on August 8 after the D & C, to rebut Dr. Gilmore's testimony regarding the availability of an ultrasound test during the weekend of August 6-7 and his testimony that Mrs. Gentry was suffering an inevitable abortion when he performed the D & C. The trial court did not allow the testimony.

The Gentrys argue that the question of the fetus's viability at the time of death is irrelevant to recovery, and that the refusal of their proposed instructions regarding the right to maintain an action for the wrongful death of a fetus was reversible error. The issue presented, therefore, is whether the trial court's refusal to instruct the jury as requested was reversible error.

I

The Alabama Wrongful Death Act permits the father, or in some cases, the mother or personal representative, to bring an action for the wrongful "death of a minor child." Ala.Code 1975, § 6-5-391. (Emphasis added.) The right thus conferred by the statute provides a remedy in certain factual situations in which the injury causing the death is inflicted before the child is born.

This Court, in Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972), considered whether a cause of action existed if the injury causing the death occurred before the child was born. In that case, this Court, following precedents from other jurisdictions, overruled Stanford v. St. Louis-San Francisco Ry., 214 Ala. 611, 108 So. 566 (1926), and allowed an action for the death of a child who was born alive but who died of injuries allegedly suffered while still in his mother's womb, but while viable. Huskey, 289 Ala. at 55-56, 265 So.2d at 598. Similarly, this Court has also recognized a cause of action when a child is born alive but dies of injuries suffered before becoming viable. See Wolfe v. Isbell, 291 Ala. 327, 333-34, 280 So.2d 758, 764 (1973). In Eich v. Town of Gulf Shores, 293 Ala. 95, 97, 300 So.2d 354, 355 (1974), this Court answered the question whether the child must be born alive, in holding that Alabama recognizes a cause of action for the wrongful death of a stillborn fetus that died of injuries suffered while viable.

In Huskey, Wolfe, and Eich, the deaths admittedly occurred after the fetus had attained viability. This case involves an alleged injury to a nonviable fetus and the death of that fetus before the fetus became viable. We follow the reasoning of a majority of jurisdictions and hold that our statute provides no cause of action for the wrongful death of a nonviable fetus. In so holding, we point out that, with the exception of Georgia, the Gentrys' position apparently is not the law in any American jurisdiction where there is no clear legislative direction to include a nonviable fetus within the class of those covered by the wrongful death acts. See Miccolis v. AMICA Mutual Insurance Co., 587 A.2d 67, 71 (R.I.1991); Gary A. Meadows, Comment, Wrongful Death and the Lost Society of the Unborn, 13 J.Legal Med. 99, 107 (1992); and Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411, 453-54, § 5[a] (1978 & Supp.1992). The Georgia courts do not require viability at the time of death, but the fetus nevertheless must be "quick," i.e., able to move in the mother's womb. Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100, 103 (1955).

During the 20 years since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the viability distinction has gained significance. In its most recent decision in the Roe line of cases, the United States Supreme Court drew the line at viability for purposes of determining when a woman has a right to choose an abortion. Planned Parenthood v. Casey, 505 U.S. 833, ----, 112 S.Ct. 2791, 2816, 120 L.Ed.2d 674, 710 (1992).

Based on the foregoing, we hold that the term "minor child" in § 6-5-391 does not include a fetus that dies before becoming able to live outside the mother's womb. Therefore, the trial court did not err in refusing to instruct the jury as requested by the Gentrys. Blair v. St. Margaret's Hospital, 285 Ala. 636, 640, 235 So.2d 668, 671 (1970).

II

We now address whether the trial court should have permitted Dr. Eichelberger to testify in rebuttal that an ultrasound test would have been available at East End Hospital during the weekend; that the fetus was alive at the time of the ultrasound test; and that Mrs. Gentry was not suffering an inevitable abortion at the time of the D & C. Because we hold that a wrongful death action is unavailable in this case, we address this issue only insofar as Mrs. Gentry's claims are concerned.

A plaintiff has a right to introduce rebuttal evidence, Charles W. Gamble, McElroy's Alabama Evidence § 433.01 (4th ed. 1991), but the trial court has wide discretion in deciding whether to admit the testimony if it does not strictly rebut other evidence. Cahaba Valley Development Corp. v. Nuding, 512 So.2d 46, 49 (Ala.1987). The trial court also has discretion to admit or to exclude cumulative evidence. See, e.g., Alabama Power Co. v. Wallace, 548 So.2d 1372, 1376 (Ala.1989); Gamble, supra, at § 10.07.

Because Dr. Gilmore admitted at trial that an ultrasound test would have been available over the weekend, Dr. Eichelberger's testimony in this respect technically would not have been in rebuttal, and would, in part, have been cumulative. Regarding whether the ultrasound test indicated any abnormality with Mrs. Gentry or with the fetus, Dr. Wolfson had already given testimony consistent with that to be given through Dr. Eichelberger. Also, in response to the trial court's question outside the presence of the jury, Dr. Eichelberger admitted that the ultrasound test would not have conclusively indicated whether an abortion was in progress. Considering these factors, the trial court did not abuse its discretion in refusing to permit the testimony in this particular case.

Based on the foregoing, we affirm the judgment of the trial court based on the jury verdict in Dr. Gilmore's favor on the claims of both Mr. and Mrs. Gentry.

AFFIRMED.

HORNSBY, C.J., and SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.

ALMON and HOUSTON, JJ., concur in the result.

MADDOX, J., dissents.

HOUSTON, Justice (concurring in the result).

I concur with Justice Merrill's dissent (concurred in by Justices Coleman, Harwood, and McCall) in Eich v. Town of Gulf Shores, 293 Ala. 95, 100-01, 300 So.2d 354, 358-59 (1974). Therefore, I would vote to overrule Eich v. ...