Milton v. Cary Medical Center

• Decision Date: 22 February 1988
• Citation: 538 A.2d 252
• Parties: Hallie A. MILTON et al. v. CARY MEDICAL CENTER et al.
• Court: Maine Supreme Court

Page 252

538 A.2d 252

56 USLW 2520

Hallie A. MILTON et al. v. CARY MEDICAL CENTER et al.

Supreme Judicial Court of Maine.

Argued Sept. 8, 1987.

Decided Feb. 22, 1988.

Ricky L. Brunette (orally), Portland, for plaintiffs.

Arlyn H. Weeks (orally), Preti, Flaherty, Beliveau & Pachios, Portland, for Cary Medical Center.

Paul F. Macri (orally), Berman, Simmons & Goldberg, P.A., Lewiston, for Mazerolle.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

GLASSMAN, Justice.

Hallie A. and Michael Milton, individually, and Hallie A. Milton as the personal representative of the estate of baby girl Milton, appeal from the summary judgment entered by the Superior Court, Cumberland County, for the defendants, Cary Medical Center and Denis R. Mazerolle, on the Miltons' complaint. Essentially, the complaint alleged that the hospital and physician negligently cared for Hallie Milton during the latter part of her pregnancy and either caused or failed to prevent the death of her then unborn child. ¹ We affirm the judgment as to the wrongful death claim of Hallie Milton, in her representative capacity, and the individual claims of the plaintiffs for loss of filial consortium, and vacate the judgment as to the remaining claims of the plaintiffs.

I

By a multi-count complaint, the Miltons jointly sought damages from the defendants for their mental and emotional distress, loss of filial consortium of their child, and the further medical care of Hallie Milton, all as the result of the alleged negligent medical care by the defendants of Hallie Milton during her pregnancy. In addition, Michael Milton sought damages for the loss of consortium of Hallie Milton, and Hallie Milton, as the personal representative of the estate of baby girl Milton, sought damages for the wrongful death of the child.

After hearing, the trial court granted the defendants' motion for summary judgment on all counts of the complaint, and the plaintiffs appeal.

II

Hallie Milton, in her representative capacity, contends that the trial court erred in its determination that a viable fetus is not a person for the purposes of 18-A M.R.S.A. § 2-804 (1981) and accordingly that a wrongful death action cannot be maintained for the death of a viable fetus. ² This difficult question of whether a viable fetus is a person within the meaning of the wrongful death statute has not previously been addressed by this court. The separate personhood of a viable fetus was first recognized in Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), when that court ruled that an action could be maintained by a living child for injuries sustained by that child as a viable fetus. Within three years the Minnesota Supreme Court upheld a wrongful death action for fatal prenatal injuries inflicted on a viable fetus. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949).

The subject has now been extensively litigated in other jurisdictions with the courts in a majority of those states allowing a wrongful death action to be brought on behalf of a fatally injured viable fetus. ³ In Tennessee and South Dakota the same result has been achieved by statute. ⁴ Courts in a lesser number of states, however, have refused to permit such an action. ⁵ In each case, the essential question has been whether a viable fetus is a "person." Although we are aware of these decisions of other jurisdictions, we conclude that rights under section 2-804 of the Probate Code are to be defined not by the reasoning of other courts but from a reading of our own law to derive its meaning and intent.

In our view, the meaning of subsection (a) must be controlled by our understanding of subsection (b). ⁶ We so held in relation to the predecessor sections, R.S. ch. 89, sections 9, 10 (1903). Hammond v. Lewiston, Augusta and Waterville St. Ry., 106 Me. 209, 76 A. 672 (1909). In Hammond we stated that "both [sections] are to be construed together and as they create a liability unknown to the common law, their effect is to be limited to cases clearly within the terms of the act." Id. at 212-13, 76 A. 672. We then held that the nature of the remedy provided depends entirely on the rights vested in the beneficiaries "at the time of the decease." Id. at 213. Moreover, the act originally provided for damages based only on the "pecuniary injuries" to the beneficiaries. Thus, damages for the death of a minor child were severely limited. See Picard v. Libby, 152 Me. 257, 127 A.2d 490 (1956); Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393 (1939); Carrier v. Bornstein, 136 Me. 1, 1 A.2d 219 (1938); Curran v. Lewiston, Augusta and Waterville St. Ry. Co., 112 Me. 96, 90 A. 973 (1914).

In the face of these judicial interpretations, the Legislature has not been silent. In 1967, the Legislature added non-pecuniary damages for the death of a child by inserting the following language:

"and in addition thereto, where the deceased was a minor child at the time of the injury which resulted in death, damages not exceeding $5,000 may be recovered on behalf of the parents of said deceased minor for the loss of comfort, society and companionship of said minor"

P.L.1967, ch. 369 (P.L.1969, ch. 266 raised limit to $10,000). The terminology of this amendment is entirely inconsistent with the notion that a wrongful death action could be brought on behalf of a stillborn, viable fetus. The deceased must be "a minor child at the time of the injury which resulted in death," damages were to be recovered only on behalf of the parents, not heirs, and "for the loss of comfort, society and companionship of said minor." P.L.1967, ch. 369 (emphasis added). These words utilized by the Legislature in 1967 influence our interpretation of the word "person" first utilized in the wrongful death statute in 1891. It is important to note that the language of the 1967 amendment was adopted 21 years after Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), 18 years after Verkennes v. Corniea, 38 N.W.2d 838 (1949), and after 11 other jurisdictions had allowed an action to be brought on behalf of a stillborn, viable fetus.

In 1977 the restriction on consortium claims to the loss of a minor child was removed by the Legislature by amending the 1967 language to read

and in addition thereto, may give damages not exceeding $10,000 for the loss of comfort, society and companionship of the deceased to the persons for whose benefit such action is brought....

P.L.1977, ch. 192 (P.L.1981, ch. 213 raised limit to $50,000). Although there is no pertinent legislative history, it is obvious that the legislative purpose of the 1977 amendment was to extend to the relatives of a deceased adult damages for loss of consortium that previously had been available only to the parents of a deceased minor child.

Further, subsection (b) identifies the beneficiaries of a wrongful death action as "the surviving spouse, if no minor children, and of the children if no surviving spouse, and one-half for the exclusive benefit of the surviving spouse and one-half for the exclusive benefit of the minor children to be divided equally among them, if there are both surviving spouse and minor children, and to the deceased's heirs to be distributed as provided in section 2-106, if there is neither surviving spouse nor minor children."

The query then becomes, could a viable fetus benefit as a minor child or as an heir under section 2-106 of the Probate Code from the wrongful death of a parent or antecedent? Subsection (b) clearly refers to minor children. Section 1-201(24) of the Probate Code defines a minor as "a person under 18 years of age." See also 1 M.R.S.A. § 72(11-A), (11-B). Section 1-201(3) defines "child" as including "any individual entitled to take as a child under this Code of intestate succession from the parent...." There can be no doubt that any reference to a "child," "heir" or "issue" in the Probate Code as it relates to intestate succession can only be construed as meaning a fetus that is born alive and that survives the decedent by 120 hours. 18-A M.R.S.A. § 1-201; 18-A M.R.S.A. §§ 2-101 to 2-114 (1981 & Supp.1987).

To construe the word "person" in section 2-804(a) to allow an action for the wrongful death of a viable fetus and not allow beneficial rights or rights of inheritance to a viable fetus for the wrongful death of a parent or antecedent under section 2-804(b) would be to create an anomaly. It becomes self-evident that because of the language of section 2-804 and its explicit integration into the Probate Code we must avoid this result in order not to do violence to the very fabric of the Probate Code. See Faucher v. City of Auburn, 465 A.2d 1120, 1124 (Me.1983) (to determine legislative intent as to section of comprehensive statute court should consider statutory scheme in its entirety).

The language of 22 M.R.S.A. §§ 1594 and 1595 supports our determination that the Legislature intended the word "person" in section 2-804(a) be given its common sense meaning of "one born alive." In 1973, the Legislature for the first time enacted legislation defining a "human person," and identified certain responsibilities toward that person. 22 M.R.S.A. §§ 1575 and 1576 (repealed and replaced by 22 M.R.S.A. §§ 1594 and 1595 (1978)). ⁷

Section 1575 provided:

Whenever an abortion procedure results in a live birth, failure to take all reasonable steps, in keeping with good medical practice, to preserve the life and health of the live born person shall subject the responsible party or parties to Maine law governing homicide, manslaughter and civil liability for wrongful death and medical malpractice.

Section 1576 defined a live birth as follows:

"Live born" and "live birth" as used [in this chapter] shall mean a product of conception after complete expulsion or extraction from its mother, irrespective of the duration of the pregnancy, which breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical...