Greater Southeast Com. Hosp. v. Williams

• Decision Date: 09 October 1984
• Docket Number: No. 82-1655.,82-1655.
• Citation: 482 A.2d 394
• Parties: GREATER SOUTHEAST COMMUNITY HOSPITAL, Appellant, v. Maxine WILLIAMS, As Administratrix of the Estate of Baby Boy Williams, Appellee.
• Court: D.C. Court of Appeals

Page 394

482 A.2d 394

GREATER SOUTHEAST COMMUNITY HOSPITAL, Appellant, v. Maxine WILLIAMS, As Administratrix of the Estate of Baby Boy Williams, Appellee.

No. 82-1655.

District of Columbia Court of Appeals.

Argued October 27, 1983.

Decided October 9, 1984.

Nicholas S. McConnell, Washington, D.C., with whom Richard W. Bryan, Washington, D.C., was on the brief, for appellant.

Harlow R. Case, Washington, D.C., with whom Jack H. Olender, Washington, D.C., was on the brief, for appellee.

Before NEWMAN, Chief Judge, and BELSON and TERRY, Associate Judges.

NEWMAN, Chief Judge:

This is an interlocutory appeal pursuant to D.C.Code § 11-721(d) (1981)¹ in which the sole issue is whether a fetus is a "person" under the wrongful death and survival statutes of the District of Columbia. Maxine Williams, as Administratrix of the of Baby Boy Williams sought recovery under our wrongful death and survival statutes against defendants Llewelyn M.D., and Greater Southeast Community Hospital. Williams alleged that as result of defendants' negligent treatment of Williams' decedent, a fetus in approximately the thirty-third week of gestation, the fetus was stillborn. Greater Southeast Community Hospital filed a motion to dismiss the complaint on the grounds that no cause of action existed under the wrongful death or survival statutes because a fetus is not a "person" under the statutes. The trial court denied the motion, holding that a viable fetus is a "person" within the context of these statutes. We conclude: (1) a trator viable fetus has a right to be free of tortious injury; (2) a child born alive has a cause of action for such an injury; (3) a viable fetus negligently injured en ventre sa mere is a "person" within the meaning of our wrongful death and survival statutes. Thus, we affirm.

In relevant part, the District of Columbia's Wrongful Death Statute, D.C. § 16-2701 (1981), and Survival Statute, D.C.Code § 12-101 (1981), provide:

[w]hen . . . the death of a person is caused by the wrongful act . . . of a person . . . and the act is such as will, if death does not ensue, entitle the person injured . . . to maintain an action . . . the person . . . is liable to an action for damages for the death. . . .

D.C.Code § 16-2701 (1981).

* * * * * *

[o]n the death of a person in whose favor . . . a right of action has accrued for any cause prior to his death, the right of action . . . survives. . . .

D.C.Code § 12-101 (1981).

A cause of action for wrongful death arises only if the deceased could have brought a cause of action for injuries if death had not ensued; and a cause of action for injuries survives the deceased's death only if the cause of action accrued prior to death. Thus, inherent in the precise statutory question before us is the common law question of whether the deceased in this case could have pursued a common law action for prenatal injury had death not ensued, and whether the action accrued prior to death.

The first reported common law decisions passing upon the right of a child to recover damages for prenatal injury was decided by Justice Oliver Wendell Holmes writing for the court in Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). Suit was brought by the administrator of a child who, as a result of the fall of his mother, was born at about four and a half months gestation and survived birth for only a few minutes. The issue was whether an unborn child was a "person" under a wrongful death statute imposing civil liability on the township. Justice Holmes recognized that a fetus was a person with legal rights under the laws of property and crime but could find no common law precedent for applying this principle to civil liability. Holmes concluded that the unborn child was a part of the mother at the time of the injury, therefore any damage to it was recoverable by the mother. Id. at 16.

The Dietrich decision and its rationale that a fetus is not a "person" with an existence apart from its mother, although severely criticized as unjust and in fact incorrect, was followed for over a half a century in the United States and England. 1 J. DOOLEY, MODERN TORT LAW § 14.02.50 (1982); W. PROSSER, LAW OF TORTS § 55 (4th ed. 1971). Judge Matthew McGuire, of this jurisdiction, in the landmark case of Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946), was the first to recognize a cause of action for prenatal injury. Bonbrest was a malpractice action for injuries sustained by a viable fetus, brought on behalf of a child who was born alive and who was living at the time of the action. In rejecting the Dietrich line of cases, Judge McGuire rested his decision on the established medical fact that a fetus is a person separate from its mother, as well as the injustice and inconsistency of denying a legal personality to a fetus under negligence law while recognizing it as a separate entity under criminal and property law. Id. at 140.

Although this court has never considered this question, we note that every jurisdiction in the United States has followed Bonbrest in recognizing a cause of action for prenatal injury, at least when the injury is to a viable infant later born alive. W. PROSSER, supra § 55; 1 DOOLEY, supra § 14.01 et seq.; 40 A.L.R.3d Liability for Prenatal Injuries § 1222, 1230 (1971). We adopt the Bonbrest rationale as the law of this jurisdiction and recognize the right of a viable fetus to be free of tortious injury and hold that a child born alive has a cause of action for such injuries. Hence, plaintiff in this case meets the common law requirement of the statutes in that, assuming the allegations in this case to be true, a negligence action for prenatal injury accrued to Baby Boy Williams at the time of injury; and had he survived, he could have maintained an action for those injuries.²

Having determined that a viable fetus is a "person" under the common law with the right to be free of non-fatal tortious injury, we turn now to the precise question raised in this case, i.e., whether the viable fetus is also a "person" under our wrongful death and survival statutes. Appellant argues that whatever the common law liability for prenatal injury when a child is born alive, the statutory nature of the wrongful death and survival statutes precludes liability for fatal prenatal injury. Appellant contends that the statutes must be strictly construed as derogations of the common law and that the legislature could not have intended "person" to mean an unborn child because at the time the statutes were enacted the common law did not recognize a fetus as a "person" for purposes of civil liability.

Contrary to appellant's contention, at least since Calvert v. Terminal Taxicab Co., 48 App.D.C. 119, 121 (1918), this jurisdiction has recognized that wrongful death and survival statutes are remedial acts, to be interpreted liberally to effectuate their purposes. See, e.g., Jones v. Pledger, 124 U.S.App.D.C. 254, 363 F.2d 986 (1966); Hord v. National Homeopathic Hospital, 102 F.Supp. 792 (D.D.C. 1952), aff'd, 92 U.S. App.D.C. 204, 204 F.2d 397 (1953). See also Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685 (1937). At common law, no cause of action existed for the death of a human being, and a victim's cause of action for tortious injury was extinguished by the death of the tortfeasor or his victim. See generally W. PROSSER, LAW OF TORTS §§ 126, 127 (4th Ed. 1971). In response to these harsh doctrines wrongful death and/or survival statutes were enacted throughout the United States to ensure that death did not relieve a tortfeasor of liability to the deceased or to the deceased's family.

Alleviation of the common law rules followed two separate theories, both of which have been adopted by the District of Columbia. The first is the "new cause of action" theory, represented by our wrongful death statute. This approach recognizes that the tortious killing of a person creates a financial hardship on close family members who could reasonably have expected financial support from the deceased. The wrongful death statute creates a new cause of action for the deceased's spouse and next of kin to recover for their pecuniary losses, when the deceased could have brought an action for injuries had he lived. See, e.g., Semler v. Psychiatric Institute of Washington, D.C., Inc., 188 U.S.App. D.C. 41, 43-44, 575 F.2d 922, 924-25 (1978).

The survival act, on the other hand, proceeds upon a different theory and foundation. It recognizes that liability to the victim should not be extinguished by the fortuitous event of death. The action provided for by the survival statute, therefore, does not arise from the death but from the injury itself. The act does not create a new cause of action for designated beneficiaries, but preserves for the benefit of the decedent's estate, the cause of action which the deceased would have had, had he not died. Id. at 925; Jones v. Rogers Memorial Hospital, 143 U.S.App.D.C. 51, 442 F.2d 773 (1971).

Although the statutes are independent causes of action focusing on different injuries, i.e., the loss to the decedent's estate and the pecuniary loss to the family, both statutes are predicated upon and coexist with the presence in the deceased of a common law right to damages prior to death. Thus, absent legislative direction to the contrary, this court looks to the common law, not the statutes, to determine whether under the wrongful death statute a viable fetus is a "person injured" who could have maintained an action for damages had he lived, and whether under the survival act the fetus was a "person" to whom a cause of action accrued for injury prior to death.

Undoubtedly the legislators who originally enacted the wrongful death statutes in 1885 and the survival statute in 1785, gave no thought whatsoever to whether or not a viable fetus was a "person," given the limited medical knowledge at the time and the absence of common law jurisprudence in this area. See, e.g....