Hudak v. Georgy

• Decision Date: 13 December 1989
• Citation: 567 A.2d 1095,390 Pa.Super. 14
• Parties: Michael J. HUDAK, Ann H. Hudak, Joseph Hudak, Deceased, David Hudak, Deceased and Michael Hudak, Deceased, Appellants, v. Farouk M. GEORGY, M.D., and Lyon, Cooper, Hipple, Georgy and Collins, P.C., Appellees. Michael J. HUDAK, Ann H. Hudak, Joseph Hudak, Deceased, David Hudak, Deceased and Michael Hudak, Deceased, Appellants, v. Leonard COLLINS, M.D., Appellee. 170 HSBG. 1988 171 HSBG. 1988
• Court: Pennsylvania Superior Court

Page 1095

567 A.2d 1095

390 Pa.Super. 14

Michael J. HUDAK, Ann H. Hudak, Joseph Hudak, Deceased, David Hudak, Deceased and Michael Hudak, Deceased, Appellants, v. Farouk M. GEORGY, M.D., and Lyon, Cooper, Hipple, Georgy and Collins, P.C., Appellees.

Michael J. HUDAK, Ann H. Hudak, Joseph Hudak, Deceased, David Hudak, Deceased and Michael Hudak, Deceased, Appellants, v. Leonard COLLINS, M.D., Appellee.

170 HSBG. 1988

171 HSBG. 1988

Superior Court of Pennsylvania.

Argued Sept. 27, 1989.

Filed Dec. 13, 1989.

Roberta D. Pichini, Philadelphia, for appellants.

Dennis Bonetti, Harrisburg, for appellees.

Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.

PER CURIAM:

This case presents a single issue never before addressed by a Pennsylvania court. The issue is whether a Wrongful Death and Survival action will lie on behalf of a fetus which, although allegedly born alive, was concededly not viable at the time of birth. We hold that nothing in the law of Pennsylvania suggests that such a cause of action exists and we decline to create it on the ground that to do so would be to overstep the proper boundaries of the judicial function.

Appellants are Ann and Michael Hudak, who brought the instant medical malpractice action both as individuals and in their capacity as co-administrators of the estates of Joseph, David and Michael Hudak, three non-viable fetuses. Appellees are Drs. Georgy and Collins and the medical professional corporation with which they are associated, Lyon, Cooper, Hipple, Georgy & Collins, P.C.

Mrs. Hudak was under the care of appellees for infertility in the early 1980's. In early 1982, Mrs. Hudak became pregnant but shortly thereafter experienced a miscarriage. In late 1982, Mrs. Hudak was again found to be pregnant, this time with triplets. On the evening of April 10, 1983, Mrs. Hudak called defendants' answering service to alert them that she was experiencing cramping. On Dr. Georgy's advice, Mrs. Hudak went to the hospital where Dr. Collins was on duty. Dr. Collins began administering medication to Mrs. Hudak to stop her contractions. The treatment succeeded and Mrs. Hudak was transferred to another hospital where her treatment was administered by doctors other than defendants. The next day, however, Mrs. Hudak's contractions recommenced. The triplet fetuses were delivered by caesarean section late that afternoon. Two of the fetuses were allegedly born alive, but died within minutes of birth. The third, also allegedly born alive, was placed on a respirator but died in the early morning hours of the next day.

Appellants allege that defendants were negligent in failing properly to treat Mrs. Hudak to stop her premature labor on the night of April 10th. They basically allege that defendants unduly delayed in treating Mrs. Hudak and that this delay resulted in the deaths of the fetuses.

In addition to the wrongful death and survival actions brought on behalf of the three fetuses, appellants also brought actions for negligence on their own behalf, alleging physical injuries to Mrs. Hudak and emotional distress to both Mr. and Mrs. Hudak as a result of the loss of the three fetuses. These actions are not at issue here.

Appellees sought to have the wrongful death and survival actions dismissed on the ground that Pennsylvania law does not recognize a cause of action for wrongful death and survival on behalf of a non-viable fetus. The parties stipulated on the record in the court below that the three fetuses involved herein were non-viable at the time of birth and that non-viable was to be understood to mean incapable of living outside the womb because of immaturity.

On February 9, 1988, the trial court issued an order granting defendant's motion to dismiss and entering judgment in their favor. Appellants took this timely appeal.

Determination of the issue presented depends upon interpretation of the Wrongful Death and Survival Acts, pursuant to which appellants brought the instant action. Nothing in the express language of either Act addresses this issue. The Wrongful Death Act simply provides that a cause of action exists "for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime." 42 Pa.Cons.Stat.Ann. § 8301 (1982). Reference to the Statutory Construction Act reveals that the word "individual", for whose death recovery is allowed, is defined to mean a "natural person". 1 Pa.Cons.Stat.Ann. § 1991 (1989). However, the phrase "natural person" is not defined. The Survival Act provides, in pertinent part, only that all causes of action shall survive the death of the plaintiff. Id. 42 Pa.Cons.Stat.Ann. § 8302.

Thus, the face of the statutes tells us nothing as to whether a non-viable fetus should be considered an individual on whose behalf a wrongful death action may be brought or whether a non-viable fetus is a plaintiff who had a cause of action which survives when the pregnancy terminates. Moreover, as the Supreme Court has indicated, "... the legislative history [of the Wrongful Death Act] ... reveals an absence of any indication regarding the proper resolution...." of issues like the one presented by this case. Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) (emphasis supplied).

In this vacuum of express statutory guidance or legislative history, we must look to prior judicial interpretations of the Acts to ascertain whether they are instructive. This search for authority is equally unfruitful. As the discussion that follows illustrates, there is no pronouncement of Pennsylvania law directly on the issue presented and those cases addressing related issues do not provide clear principles that can be applied in resolving the issue.

Two Supreme Court decisions regarding the right to recover for prenatal injuries are arguably pertinent to the issue presented. The first is the 1960 decision of the Supreme Court in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960). The complaint alleged that the plaintiff's mother had been involved in a car accident when she was one month pregnant with the plaintiff and that injuries received by plaintiff at that time caused her to be born Mongoloid. Id. at 268, 164 A.2d at 93. The plaintiff was born a full term child.

The Sinkler Court reasoned that while it was formerly believed that a child en ventre sa mere was merely part of its mother's body until the moment of birth, this view was no longer supported by medical authorities. The Court further stated that the negligence cause of action should not be barred simply because the injuries were allegedly suffered while the child was not viable. Id. at 270, 273, 164 A.2d at 94, 95-96.

Appellant argues that under Sinkler, wrongful death and survival actions must be allowed in the instant case because it is alleged that the fetuses involved herein were born alive and that this fact is all that is required. We disagree. Since the injuries suffered by the plaintiff in Sinkler did not result in the plaintiff child's death, that case did not involve actions for wrongful death and survival. For the same reason, Sinkler did not involve the question of the significance of viability at birth which is raised by the instant case. The Sinkler Court's comments regarding viability were addressed to the significance of viability at the time of injury and are not ipso facto pertinent to a discussion of whether a cause of action for wrongful death and survival should lie on behalf of a fetus not viable at the time of birth.

The second pertinent decision of the Supreme Court is Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985). In Amadio, plaintiff-parents alleged that the defendant doctors' negligence had caused the stillbirth of plaintiffs' daughter, who was a full term child at the time of birth. The trial court dismissed plaintiffs' wrongful death and survival actions, relying on prior Supreme Court holdings that wrongful death and survival actions did not lie on behalf of stillborn children. See Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964) ¹.

The Supreme Court reversed after reanalyzing its prior holdings and expressly rejecting the reasoning on which they had been based. The court found that since Sinkler recognized a cause of action for negligence by a child born alive for injuries suffered by the child while in utero, it would be illogical to allow recovery to such a child and yet to deny recovery simply because the injuries received in utero resulted in the stillbirth of the child. Thus, the court overruled Scott, Marko and Carroll, holding that estates of stillborn children do have the right to institute wrongful death and survival actions for "death-dealing injuries suffered while en ventre sa mere." Amadio, 509 Pa. at ---, 501 A.2d at 1089. In so doing, the court aligned itself with the growing national trend toward allowing such actions on behalf of stillborn children. Id. 509 at ---, 501 A.2d at 1087 n. 3.

A careful examination of the Amadio majority opinion, coupled with a review of the lengthy concurrence authored by Justice Zappala and the various dissenting opinions, reveals that Amadio is not a decision by the Supreme Court on the issue presented in the instant case. Nor does Amadio impliedly command any particular result when applied to this case. The issue presented in Amadio concerned the availability of wrongful death and survival causes of action to the estates of full term, i.e. viable, but stillborn children. In granting these actions to such plaintiffs, the court eliminated the only prior barrier to such actions--the requirement of live birth. However, the court did not determine whether such actions would lie where another potential barrier to the action exists--that the plaintiff sues on behalf of a fetus that...