Giuliani v. Guiler

• Decision Date: 19 June 1997
• Docket Number: No. 95-SC-1004-DG,95-SC-1004-DG
• Citation: 951 S.W.2d 318
• Parties: J. Denis GIULIANI, Administrator of the Estate of Mary K. Giuliani, Deceased; J. Denis Giuliani, individually; and J. Denis Giuliani, father and next friend of James M. Giuliani, an infant; Katherine M. Giuliani, an infant; Mary K. Giuliani, an infant; and David M. Giuliani, an infant, Appellants, v. Michael GUILER, M.D.; Baptist Health Care Systems, Inc., d/b/a Central Baptist Hospital; Richard Bennett, M.D.; Velma M. Taormina, M.D.; University of Kentucky Medical Center Residents Training Program, Appellees.
• Court: Supreme Court of Kentucky

Page 318

951 S.W.2d 318

J. Denis GIULIANI, Administrator of the Estate of Mary K Giuliani, Deceased; J. Denis Giuliani, individually; and J. Denis Giuliani, father and next friend of James M Giuliani, an infant; Katherine M. Giuliani, an infant Mary K. Giuliani, an infant; and David M. Giuliani, an infant, Appellants, v. Michael GUILER, M.D.; Baptist Health Care Systems, Inc. d/b/a Central Baptist Hospital; Richard Bennett, M.D.; Velma M. Taormina, M.D.; University of Kentucky Medical Center Residents Training Program, Appellees.

No. 95-SC-1004-DG.

Supreme Court of Kentucky.

June 19, 1997.

As Modified on Denial of Rehearing Oct. 2, 1997.

Ann B. Oldfather, Jennifer J. Hall, Oldfather & Morris, Louisville, for Appellants.

David C. Trimble, Newberry, Hargrove & Rambicure, PSC, Wilbur T. Adkins, Ronald L. Green, Boehl, Stopher, Graves & Deindoerfer, Kenneth W. Smith, Stites & Harbison, William J. Gallion, Gallion, Baker & Bray, P.S.C., Lexington, for Appellees.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which affirmed the circuit court judgment denying the four minor children of Mary K. Giuliani, deceased, who died during childbirth, a claim for loss of parental consortium for the loss of love, affection, guidance, care, comfort and protection of their mother.

The question presented is whether this Court should overrule previous decisions of this Court and recognize the right of a minor child for the loss of parental consortium.

Mary K. Giuliani, age 33, died during the birth of her fourth child. Her other children were 9, 7 and 3 years of age respectively. Their father filed a claim for wrongful death as administrator, his own claim for loss of consortium and a claim for loss of consortium as next friend for each of the four minor children. The principal wrongful death case is still in the discovery stage at the circuit court level. The trial judge dismissed the claim for loss of consortium of the three minor children in a one-page partial summary judgment. The Court of Appeals affirmed the dismissal but invited this Court to revisit the question of parental consortium. Both the circuit court and the Court of Appeals indicated a constraint on them as a result of the case of Brooks v. Burkeen, Ky., 549 S.W.2d 91 (1977). Later, Adams v. Miller, Ky., 908 S.W.2d 112 (1995), also refused to recognize such a claim on the basis that no other legislature or court had done so. The Court of Appeals stated in its opinion denying the claim that "We can only encourage our Supreme Court to revisit this issue in the light of modern developments in this area of the law." This Court accepted discretionary review.

Dr. Guiler was the obstetrician but was not present at the time of delivery. He instructed the nurses at the hospital to induce labor. After seeing Mary at 6 p.m., the doctor decided he was not needed and left for dinner at the home of a friend. The record indicates that the nurses apparently became more concerned about the situation and unsuccessfully attempted to reach the doctor by numerous calls. Ultimately, Dr. Bennett, an anesthesiologist, an obstetric resident and members of the CODE team, none of whom were familiar with the case, attempted to aid the mother. The mother suffered a cardiac and respiratory collapse shortly after the child's birth and died.

Kentucky currently recognizes loss of consortium claims between husband and wife and the claim of a parent for the loss of the child's affection and companionship upon the death of a child. The question presented here is whether this Court should now recognize a child's loss of parental consortium as well. The Giuliani children through counsel argue that the loss of the parent's love and affection is devastating to any child. Children should be able to bring a loss of consortium claim to recover from the wrongdoer whose negligent acts have caused the harm. Such a cause of action does not currently exist in Kentucky but it should. The loss of consortium is a judge-made common law doctrine which this Court has the power and duty to modify and conform to the changing conditions of our society. When the common law is out of step with the times, this Court has a responsibility to change that law. Development of the common law is a judicial function and should not be confused with the expression of public policy by the legislature.

Kentucky has recognized the changing nature of the parent-child relationship and the importance of children to the family. The legislature has made it the express public policy of the Commonwealth to protect and care for children in a nurturing home. KRS 600.010. It has also recognized the individuality of the child and the value to a family by providing parents a consortium claim for the loss of the love and affection of their child. KRS 411.135. It is a natural development of the common law to recognize the need for a remedy for those children who lose the love and affection of their parents due to the negligence of another. It is necessary for this Court to conform the common law so as to provide a remedy for loss of consortium for children and to decline to "perpetrate an anachronistic and sterile view of the relationship between parents and children." Gallimore v. Children's Hospital Medical Center, Ohio, 67 Ohio St.3d 244, 617 N.E.2d 1052 (1993).

This Court fully understands and appreciates that the trial court and the intermediate appellate court were not at liberty to recognize the loss of parental consortium resulting from the mother's death because of the Brooks, supra, case. Later, Adams, supra, followed Brooks in refusing to recognize the loss of parental consortium solely because "no court or legislature in the United States has yet seen fit to recognize such action."

The premise for the Brooks rationale no longer exists. Since 1977, when Brooks was decided, 15 courts and two state legislatures have recognized the claim of children for loss of parental consortium. The trend towards recognition of the claim can be found in the following cases: Ferriter v. Daniel O'Connell's Sons, Inc., Mass., 381 Mass. 507, 413 N.E.2d 690 (1980); Berger v. Weber, Mich., 411 Mich. 1, 303 N.W.2d 424 (1981); Audubon-Exira v. Illinois Central Gulf Railroad Co., Iowa, 335 N.W.2d 148 (1983); Theama v. Kenosha, Wisc., 117 Wis.2d 508, 344 N.W.2d 513 (1984); Ueland v. Reynolds Metals Co., Wash., 103 Wash.2d 131, 691 P.2d 190 (1984); Hay v. Medical Center Hospital of Vermont, Vt., 145 Vt. 533, 496 A.2d 939 (1985); Hibpshman v. Prudhoe Bay Supply, Inc., Alaska, 734 P.2d 991 (1987); Villareal v. State Dept. of Transportation, Ariz., 160 Ariz. 474, 774 P.2d 213 (1989); Williams v. Hook, Okl., 804 P.2d 1131 (1990); Nulle v. Gillette-Campbell Fire Bd., Wyo., 797 P.2d 1171 (1990); Belcher v. Goins, W.Va., 184 W.Va. 395, 400 S.E.2d 830 (1990); Reagan v. Vaughn, Tex., 804 S.W.2d 463 (1990); Pence v. Fox, Mont., 248 Mont. 521, 813 P.2d 429 (1991); Gallimore v. Children's Hosp. Medical Center, supra, and Romero v. Byers, N.M., 117 N.M. 422, 872 P.2d 840 (1994), in a case in which the wrongful death statute would include loss of parental consortium. In addition, the state legislatures of Florida and Louisiana have recognized the parental consortium claim by specific statute. Six of the jurisdictions who have recognized the parental consortium claim reversed previous positions denying such claims. See J. Parker, Parental Consortium: Assessing Contours of the New Tort in Town, 64 Miss.L.J. 37 (Fall 1994).

The doctrine of stare decisis does not commit us to the sanctification of ancient fallacy. Hilen v. Hays, Ky., 673 S.W.2d 713 (1984). Stare decisis does not preclude all change. The principle does not require blind imitation of the past or adherence to a rule which is not suited to present conditions. See Hays, supra. The "ancient fallacy" continued by Brooks and Adams is the view that children do not have identity as individuals and as members of the family separate from their parents. This has never been true and it is long overdue that we recognize the essential personhood of each individual while giving homage and deference to their inclusion in the family. The loss suffered by each child in this case is separate and distinct from the loss of their brothers and sisters and from the loss suffered by their father.

Given the legislatively expressed public policy of this Commonwealth to strengthen and encourage the family for the protection and care of children, KRS 600.010, it is only logical to recognize that children have a right to be compensated for their losses when such harm has been caused to them by the wrongdoing of another. It is the purpose of all tort law to compensate one for the harm caused by another and to deter future wrongdoing. City of Louisville v. Louisville Seed Co., Ky., 433 S.W.2d 638 (1968), overruled on other grounds by Gas Service Company, Inc. v. London, Ky., 687 S.W.2d 144 (1985). Loss of consortium is a common law cause of action. Common law grows and develops and must be adapted to meet the recognized importance of the family, and the necessity for protection by the law of the right of a child to a parent's love, care and protection so as to provide for the complete development of that child. See Theama v. Kenosha, supra.

This Court has the authority and responsibility to modify loss of consortium as a common law doctrine when necessary. The general claim for loss of consortium has long been recognized in a number of Kentucky precedents. E.g., Dietzman v. Mullin, 108 Ky. 610, 57 S.W. 247 (1900); Kotsiris v. Ling, Ky., 451 S.W.2d 411 (1970). Originally, at early common law, the action for loss of consortium protected only the economic interest of the husband in his wife. Dietzman, supra. That concept has been expanded to include the loss of a wife's companionship, security and love. In 1970, this Court expanded the cause of action for loss of consortium to allow a wife to...