Justice v. Booth Maternity Center

• Decision Date: 20 September 1985
• Citation: 345 Pa.Super. 529,498 A.2d 950
• Parties: Georgette JUSTICE and Richard Mays, Administrators of the Estate of Rafiki Mays, Deceased, and Georgette Justice and Richard Mays, in their own right, Appellants, v. BOOTH MATERNITY CENTER and Phillip Glass, M.D. 02375 Phila. 1983
• Court: Pennsylvania Superior Court

Page 950

498 A.2d 950

345 Pa.Super. 529

Georgette JUSTICE and Richard Mays, Administrators of the

Estate of Rafiki Mays, Deceased, and Georgette

Justice and Richard Mays, in their own

right, Appellants, v. BOOTH MATERNITY CENTER and Phillip Glass, M.D.

02375 Phila. 1983

Superior Court of Pennsylvania.

Argued Oct. 9, 1984.

Filed Sept. 20, 1985.

Mark I. Bernstein, Philadelphia, for appellants.

Donald J. Sweeney, Philadelphia, for Booth, appellee.

Before ROWLEY, McEWEN and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from an order sustaining preliminary objections in the nature of a demurrer to appellants' amended complaint. ¹ Appellants raise four issues in their brief:

1. May the Administrators of the estate of a stillborn child and the father of the child, in his own right, recover damages for the death of the child during childbirth caused by the negligence of the attending obstetrician?

2. May the Administrators of the estate of a stillborn child and the father of the child, in his own right, recover damages for the breach of the warranty of due care in the delivery of the child or for the lack of informed consent as to the procedures used in the delivery of the child?

3. May the father of a stillborn child, in his own right, recover damages for the emotional distress caused by the death of his child resulting from the negligence of the attending obstetrician where the father witnessed the entire procedure and the death in question?

4. In light of the provisions of the Abortion Control Act of 1982, 18 Pa.C.S. 3201 et seq., and the decisions in thirty-one other states, is the decision in Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9, and its progeny controlling in medical malpractice by an obstetrician during delivery which results in death three minutes prior to the delivery of the stillborn child?

We affirm.

Appellant Georgette Justice, while pregnant with the decedent child, was under the care of appellee Phillip Glass, M.D., who was associated with appellee Booth Maternity Center. The pregnancy was uneventful except for a minor fall which occurred on February 4, 1982, when Ms. Justice was nine months pregnant. Two days later, she was admitted to Booth Maternity Center. During delivery, complications arose which resulted in the stillbirth of the child.

Appellants, Georgette Justice and Richard Mays, on their own behalf and on behalf of the estate of their stillborn child, filed a complaint which alleged negligence and breach of warranty on the part of appellees with regard to the delivery of the decedent.

We note at the outset that our study here is subject to the well established precept that "[i]n reviewing a demurrer we must accept as true all well-pleaded facts and the reasonable inferences therefrom. A demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer." Douglas v. Schwenk, 330 Pa.Superior Ct. 392, 393, 479 A.2d 608, 609 (1984) (citations omitted).

The principal inquiry of this appeal is whether the estate of a stillborn child may recover in a civil action at law for damages which occur as a result of negligent pre-natal care. Appellants acknowledge that our Supreme Court has specifically disallowed such suits and stated that, "whereas an action will lie on behalf of an infant born alive for damages resulting from injury tortiously inflicted during the infant's fetal existence, neither a survival action nor a death action will lie in the case of a stillborn infant." Scott v. Kopp, 494 Pa. 487, 490, 431 A.2d 959, 961 (1981) (emphasis in original). See also Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). Appellants, nevertheless, argue that the Pennsylvania Legislature has, through the Abortion Control Act, ² extended to the unborn the equal protection of the laws thus permitting the estate of the instant decedent to bring this wrongful death and survival action. ³

Our review of the legislative history of the Act reveals that, as originally drafted, the statute contained a section which expressly permitted a wrongful death action to be brought, but only on behalf of destroyed ova which were fertilized in vitro. ⁴ That section stated: ⁵

§ 3216. Private action for injunctive relief and damages.

(a) Petition.--Any adult person or any agency or association by its representative may file a petition in a court of competent jurisdiction alleging that a person or persons has violated this chapter, is about to violate this chapter or is in the course of a continuing violation of this chapter, or, under the circumstances provided in section 3213(g)(2) (relating to prohibited acts), may institute an action for wrongful death. The petition shall be verified but the statements therein may be made upon information and belief.

(b) Guardian ad litem trustee.--The petition may seek appointment of the petitioner, or of some other named person, or of a person to be named within the discretion of the court, as guardian ad litem for any child or class of children, or any unborn child or class of unborn children, regardless of whether that child or class of children already has parents or guardians. If the petition alleges a wrongful death, an impending violation of section 3213(g)(1), or brings an action under section 3213(g)(2), it may seek appointment of the petitioner, or of some other named person, or of a person to be named within the discretion of the court, as a public trustee. The court may revoke such an appointment at any time, after notice and hearing, upon its own motion or upon the motion of an intervenor for collusion or lack of prosecution.

(c) Relief.--The petition may seek injunctive relief or actual damages or exemplary damages or any combination thereof. In making determinations with regard to temporary or preliminary injunctive relief, the court shall presume that any violation of this chapter constitutes irreparable injury and is against the public interest.

After prolonged, intense debate in the House of Representatives, however, section 3216 was amended to remove the wrongful death provisions. As a result, the present Abortion Control Act provides no express civil remedy to a fetus for any tortious or criminal acts on the part of those who perform abortions.

We are of the view that the legislature deleted the wrongful death action from the act because it wished to retain in this Commonwealth the policy of denying access to the courts by those who have not first been born alive. Therefore, we must reject appellants' attempt to sue appellees as representatives of the estate of the deceased child.

Appellant Mays, on his own behalf, also seeks damages for (1) the negligent delivery of the child, (2) breach of a warranty of successful delivery, (3) lack of "informed consent as to the procedures used in the delivery of the child," and (4) negligent infliction of emotional distress. We note, initially, that Mays' negligence action is fatally deficient because he avers no injury to himself as a result of appellees' allegedly tortious actions. His argument, therefore, is meritless.

As for his allegation of lack of informed consent,

[t]he law in this Commonwealth is that where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, his "informed consent" is a prerequisite to a surgical operation by his physician. An operation without such informed consent is a technical assault, making the physician liable for any injuries resulting from the invasions, regardless of whether the treatment was negligently administered.

Cooper v. Roberts, 220 Pa.Superior Ct. 260, 264, 286 A.2d 647, 649 (1971) (emphasis supplied) (citations omitted). Appellant Mays, however, was not the patient in this case and his body was not in any fashion "invaded" by appellees. Rather, an action based upon the concept of informed consent would only be the prerogative of appellant Justice because she experienced the alleged "technical assault." Accordingly, we find that the lower court properly rejected this claim.

Mays also asserts that appellee breached an alleged warranty to successfully deliver the child. Because the allegations of fact upon which appellant premises this assertion do not establish the existence of such a warranty, however, we must also find this claim to be meritless.

Finally, Mays seeks to recover for appellee's negligent infliction of emotional distress. In order to state a cause of action for negligence resulting in emotional harm, a plaintiff must allege bodily harm or other compensable damage. See Banyas v. Lower Bucks Hospital, 293 Pa.Superior Ct. 122, 128-29, 437 A.2d 1236, 1239 (1981); Restatement (Second) of Torts § 436A (1977). Here, appellant has averred no physical harm. We therefore find that he has failed to state a cause of action for negligent infliction of emotional distress.

Accordingly, we affirm the order of the lower court sustaining appellees' preliminary objections.

Affirmed.

McEWEN, J., files a concurring opinion.

McEWEN, Judge, concurring:

My distinguished colleagues of the majority have quite accurately set forth in their thoughtful opinion the law as it currently exists in this Commonwealth. I am compelled, however, to formally express disagreement with the presently prevailing view that the heirs and estate of a stillborn child may not bring a cause of action under the Wrongful Death Act ¹ and the Survival Act ². It was almost a half century ago that our Supreme Court ruled in Berlin v. J.C. Penney Co., 339 Pa. 547, 16 A.2d 28 (1940), that an action would not lie for injuries negligently inflicted upon a child when in the womb. Twenty years later, however, the Supreme Court in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), overruled Berlin when it (1) considered the claim of an infant who was born mongoloid, allegedly as a result of injuries...