Libbee v. Permanente Clinic

• Citation: 268 Or. 258,518 P.2d 636
• Parties: Michealeen LIBBEE, Personal Representative of the Estate of Brian Libbee, Appellant, v. PERMANENTE CLINIC, partnership, et al., Respondents.
• Decision Date: 21 March 1974
• Court: Supreme Court of Oregon

Page 636

518 P.2d 636

268 Or. 258

Michealeen LIBBEE, Personal Representative of the Estate of Brian Libbee, Appellant, v. PERMANENTE CLINIC, partnership, et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 10, 1973.

Decided Jan. 31, 1974.

Rehearing Denied March 21, 1974. See 520 P.2d 361.

Theodore S. Bloom, Portland, argued the cause for appellant. With him on the brief were Martindale, Ruben & Rothman, Portland.

William L. Hallmark, Portland, argued the cause for respondents. With him on the brief were McMenamin, Jones, Joseph & Lang, Portland.

TONGUE, Justice.

This is an action for wrongful death brought on behalf of the estate of a baby that died in defendant's hospital shortly before its birth. Plaintiff appeals from the granting of a directed verdict in favor of defendant Kaiser Foundation Hospital. ¹

The facts, insofar as they relate to the issues raised by this appeal, are substantially as follows, giving plaintiff the benefit of all favorable evidence, as required in such a case. ²

Michealeen Libbee was admitted to the hospital on August 11, 1969, at about 2:30 p.m. for the delivery of her baby. At that time she was six weeks and five days overdue. At about 7:30 p.m. Dr. George saw her, ruptured her membrane, and noted that the amniotic fluid was 'quite stained,' i.e., that there was meconium in the amniotic fluid. ³

Mrs. Libbee was then monitored, including a check of the fetal heartbeat, approximately every half-hour by one of defendant's registered nurses until 11 p.m., when that nurse went off duty and her duties were assumed by another registered nurse employed by the hospital. During that period Mrs. Libbee made very little progress in her labor.

The second nurse testified that she continued to monitor Mrs. Libbee every half-hour and that entries were made on the hospital records to that effect. Mrs. Libbee testified, however, that after the nurse checked her at about 12:30 a.m., she felt a different kind of a pain at about 1 a.m., and rang the bell to summon the nurse. She also testified that the nurse then 'stuck her head in' and said that she would be back 'in a moment,' but did not return until about 1:30 a.m.

At that time the nurse again monitored Mrs. Libbee and found that there were no fetal heart tones, as found on all previous occasions. A doctor was then summoned and a Caesarean operation was performed, but the child was dead upon delivery.

Medical testimony was offered by plaintiff that under these circumstances, including the discovery of meconium in the amniotic fluid, the fetal heartbeat should have been monitored every five minutes. In addition, the nurse herself admitted that it was 'common practice' in defendant's hospital for an LPN (Licensed Practical Nurse) to monitor the heart tones of the patient 'quite frequently.' She also admitted that she was aware of the fact that the amniotic fluid was 'stained' and that this 'could be a problem for the baby.'

In addition to contending that this evidence was insufficient to go to the jury on the issue of its negligence, the hospital raises the threshold question whether an action for wrongful death of a stillborn baby can be maintained in Oregon--a question never before decided by this court.

1. An action for wrongful death of a stillborn child can be maintained in Oregon.

In Mallison v. Pomeroy, 205 Or. 690, 697, 291 P.2d 225 (1955), we held that a 'viable' unborn child is a 'person' for the purposes of Article I, § 10, of the Constitution of Oregon, which guarantees 'every man (a) remedy by due course of law for injury done (to) him in his person.' ⁴ In that case, however, the child was born alive. This court held that it had a cause of action for personal injuries sustained by it while it was in its mother's womb, causing cerebral palsy.

In so holding this court chose to follow what we referred to as 'the best reasoned modern judicial opinions,' despite substantial authority to the contrary.

Among the decisions cited with approval in Mallison (at 692, 291 P.2d 225) is Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). In that case, as in this, the action was for the wrongful death of an unborn child. In one of the first and leading cases sustaining the right to recovery in such an action the court said (at 38 N.W.2d 840), in quoting from another case:

"* * * The wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize its separate existence for the purpose of redressing the tort."

The court in Verkennes then went on to hold (at 841):

'* * * It seems too plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited.'

Since Verkennes the courts of 19 jurisdictions now expressly permit an action for the death of a viable unborn child. ⁵ Twelve jurisdictions expressly prohibit such actions. ⁶

The principal reasons stated for prohibiting such actions are as follows:

(1) Precedent. This reason no longer applies because the weight of authority now favors recovery.

(2) An unborn child has no judicial existence apart from its mother. It is now recognized that there is no medical or scientific basis for such a proposition and it was expressly rejected by this court in Mallison, at least with respect to a viable unborn child. It has been predicted that 'the requirement of viability will be scrapped,' ⁷ but that question need not be decided in this case, which involved a clearly 'viable' child.

(3) Permitting such actions would open the door to fraudulent claims and proof of a causal connection and of pecuniary damages would be speculative.

The speculative nature of the proof of pecuniary damages on the death of an unborn child is one of the reasons why some courts deny recovery in such cases. In Oregon, however, the Wrongful Death Act has now been amended so as to no longer limit damages in actions under the statute to pecuniary loss. Thus, effective January 1, 1974, ORS 30.020 now includes loss of society and companionship to the parents of a child as an item of damages. (Oregon Laws 1973, ch. 718.) The measure of damages in this case may or may not be limited to those provided for under ORS 30.020 prior to that amendment. This however, is no reason to hold that the unborn decedent in this case was not a 'person' for the purpose of that statute.

To the same effect, courts of states which permit recovery in such cases have applied the usual rule to the effect that once a substantive right of a person is recognized, that right cannot then be denied because of possible difficulties in proof ⁸ and that if the common law has vitality it should be elastic enough to provide safeguards against fraudulent and speculative claims and to adapt itself to the facts of life in our modern society. ⁹

Even under the previous provisions of the Oregon Wrongful Death Act this court has recognized that the ultimate issue in an action for wrongful death is 'the 'value of the life lost',' ¹⁰ and that the speculative nature of proof of pecuniary damage in wrongful death actions is no reason to deny the right of a plaintiff to have such an action submitted to the jury, much less to deny the existence of the substantive right to bring such an action. ¹¹ Furthermore, the purpose of a Wrongful Death Act, is to provide such a remedy whenever, if death had not ensued, there would have been an action for damages. ¹²

Suppose, as did the court in Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106, 108 (1959), the following hypothetical case: A mother bears twins. One is born alive, but immediately dies because of negligent conduct of a hospital. The other dies immediately before birth as the result of the same negligent conduct. Or suppose, as a second hypothetical case, two different mothers, each with a child about to be delivered, one of which is born alive and then dies, while the other dies immediately before birth, each as the result of similar negligent conduct by the hospital. As the Court said in Stidam (at 167 N.E.2d 108): '* * * (I)t would be absurd if no recovery could be had for such injuries, unless those injuries were not so severe as to cause death before birth.' To the same effect, see Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107, 110 (1966).

Under the rule of Mallison, we would be required to hold that an action could be brought for the wrongful death of the first child in each hypothetical case on the ground that it was a 'person' while yet unborn and at the time of the injury causing its death, despite any problems of proof of causation and pecuniary damage. We find no logical basis for distinction under which we could properly hold that no action can be brought for the wrongful death of the second child in each case despite the fact that it was also a 'person' at the time of the injury causing its death.

While we recognize that some courts have denied recovery in such cases, after studying this problem we believe that the more persuasive reasons are those adopted by the majority of courts which now recognize a right of action in such cases. We also believe that in view of our previous holding in Mallison to the effect that a viable unborn child is a 'person' for the purpose of being entitled to remedy by due course of law for injuries to his person, we cannot properly, hold, without overruling Mallison, that there can be no remedy when such an injury results in death immediately before birth, as in this case. ¹³ We also recognize that the Supreme Court of the United States, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), has held (at 410 U.S. 158, 93 S.Ct. 705) that a fetus is not a 'person' for the purpose of the Fourteenth Amendment of the Constitution...