Pino v. U.S.

• Decision Date: 01 April 2008
• Docket Number: No. 105,223.,105,223.
• Citation: 2008 OK 26,183 P.3d 1001
• Parties: Michael PINO and Amy Pino as parents of deceased, Nevin Michael Pino, Plaintiffs/Appellants, v. The UNITED STATES of America, Defendant/Appellee.
• Court: Oklahoma Supreme Court

183 P.3d 1001

2008 OK 26

Michael PINO and Amy Pino as parents of deceased, Nevin Michael Pino, Plaintiffs/Appellants, v. The UNITED STATES of America, Defendant/Appellee.

No. 105,223.

Supreme Court of Oklahoma.

April 1, 2008.

Certified Question from a Federal Court.

¶ 0 The United States Court of Appeals, Tenth Circuit, certified the following question: As of September 1-2, 2003, did the Oklahoma Wrongful Death Statute, Okla. Stat. tit. 12, § 1053, afford a cause of action for the wrongful death of a nonviable stillborn fetus?

CERTIFIED QUESTION ANSWERED.

Steven T. Horton, Brent Neighbors, Horton & Neighbors, Oklahoma City, OK, for Plaintiffs/Appellants.

Sheldon J. Sperling, United States Attorney, Jeanette Windsor, Assistant United States Attorney, Muskogee, OK, for Defendant/Appellee.

TAYLOR, J.

¶ 1 The United States Court of Appeals, Tenth Circuit, certified the following question under the authority of Tenth Circuit Rule 27.1 and the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001, § 1601-1611.

As of September 1-2, 2003, did the Oklahoma Wrongful Death Statute, Okla. Stat. tit. 12, § 1053, afford a cause of action for the wrongful death of a nonviable stillborn fetus?¹

I. FEDERAL LITIGATION

¶ 2 On December 19, 2005, the plaintiffs, Michael Pino and Amy Pino, filed a complaint in the United States District Court for the Eastern District of Oklahoma both individually and as the parents of Nevin Michael Pino against the United States of America. The complaint asserted a wrongful death action alleging that the defendant's agents and servants were negligent in failing to properly treat Amy Pino and her unborn baby. The defendants answered, asserting as an affirmative defense that Oklahoma's wrongful death statute, title 12, section 1053, does not recognize a cause of action for a stillborn, nonviable fetus, such as Nevin Michael Pino.

¶ 3 For purposes of this opinion, we accept the following allegations as true. In June of 2003, Amy Pino began receiving prenatal care from the Carl Albert Indian Hospital (the Hospital). On September 1, 2003, Amy Pino arrived at the Hospital about 4:20 a.m. complaining of constant cramping and bright red vaginal bleeding. She was released about 5:10 a.m. after being diagnosed with a urinary tract infection. About three hours after she was discharged, an ambulance was called to her home. When Amy Pino arrived by ambulance at the Hospital about 9:30 a.m., Dr. Harvey was contacted. He diagnosed a placental abruption. About three hours later, Dr. Harvey ruptured the amniotic sac. About 4:00 a.m. on September 2, 2003, Amy Pino delivered a stillborn fetus.

¶ 4 In the federal district court, the plaintiffs contended that Dr. Harvey's diagnosis was erroneous and that his care fell below the acceptable standards. They also contended that at the time Dr. Harvey ruptured the amniotic sac, Amy Pino was stable and the fetus was alive with a detectable heartbeat and that title 12, section 1053 allowed a cause of action for the death of a stillborn, nonviable fetus. The federal district court granted judgment in favor of the defendant. It found that the parties did not contest that the stillborn "fetus was 20-weeks at the time of delivery and thus considered `nonviable.'" The court found that Oklahoma did not recognize a wrongful death action for a stillborn, nonviable fetus. The plaintiffs appealed the federal district court's judgment to the United States Court of Appeals, Tenth Circuit, which certified the question now before this Court.

II. HISTORY OF WRONGFUL DEATH CAUSES OF ACTION

¶ 5 We begin with a summary of the evolution of the wrongful death action where death occurs as a result of prenatal injury as thoroughly discussed in Nealis v. Baird, 1999 OK 98, ¶¶ 19-30, 996 P.2d 438, 446-452. In the English common law, the right of action for personal injury abated upon the injured person's death, and the person's dependents were left without a legal remedy. Id. ¶ 19, 996 P.2d at 446. To alleviate this situation, Parliament passed the Fatal Accidents Act of 1846, better known as Lord Campbell's Act, creating a cause of action for wrongful death. Id. Soon thereafter, all American jurisdictions passed similar laws. Id. However, courts refused to recognize a wrongful death action for children whose death was caused by prenatal injury. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (Mass. 1884). The exclusion was based on lack of precedent, on the potential for fraud, on the theory that the mother-child are one unit, and on the position that the legislatures rather than courts should decide the issue. See Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229, 231-232 (1951)

¶ 6 In a change of direction, Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), recognized a cause of action for a prenatal injury incurred after the fetus became viable. Soon after Bonbrest, courts abandoned the requirement that the injury occur after the fetus became viable to allow a wrongful death action if a viable infant was born alive no matter when the injury occurred. Nealis, 1999 OK 98, ¶¶ 21-22, 996 P.2d at 448. One reason given for allowing recovery regardless of when the injury occurred was the perceived injustice of allowing one of two surviving children to recover while the other could not merely because their injuries occurred at different times in their developments. Id. ¶ 21 n. 30, 996 P.2d at 447-448 n. 30. In the next evolutionary phase, most jurisdictions abandoned the live birth requirement if the child survived in utero to the point of viability even though stillborn. Id. ¶ 22, 996 P.2d at 448-449.

¶ 7 Currently, a few courts recognize an action exists for the wrongful death of a nonviable fetus born alive, see Group Health Ass'n, Inc. v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983); Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967); Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993), while others do not recognize such a cause of action. See Ferguson v. District of Columbia, 629 A.2d 15 (D.C.1993); Miller v. Kirk, 120 N.M. 654, 905 P.2d 194 (1995). A few courts recognize a cause of action for a stillborn, nonviable fetus. See Smith v. Mercy Hospital and Medical Center, 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164, (1990); Connor v. Monkem Co., Inc., 898 S.W.2d 89 (Mo. 1995); Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 N.W.2d 787 (S.D.1996); Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (W.V.1995); see also Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955) (allowing a cause of action if the fetus was "quick" in the womb). However, in our research, all but one of these are based on an express legislative statement authorizing the cause of action on behalf of an "unborn child." See Farley, 466 S.E.2d at 522.

III. OKLAHOMA'S WRONGFUL DEATH STATUTE

¶ 8 On September 1-2, 2003, Oklahoma's wrongful death statute, 12 O.S.2001, § 1053, in pertinent part, provided:

A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his personal representative if he is also deceased, if the former might have maintained an action, had he lived, against the latter, or his representative, for an injury for the same act or omission . . . .

This is the version of section 1053 now before us, and the one to which we refer unless otherwise noted.

¶ 9 In 2005, the Oklahoma Legislature added subsection F(1) to section 1053. Subsection 1053(F)(1) provides: "The provisions of this section shall also be available for the death of an unborn child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes." Title 63, section 1-730(2) defines "unborn child" as "the unborn offspring of human beings from the moment of conception, through pregnancy, and until live birth including the human conceptus, zygote, morula, bastocyst, embro and fetus." "Conception" is defined as "the fertilization of the ovum of a female individual by the sperm of a male individual." 63 O.S.2001, § 1-730(4).

¶ 10 The Tenth Circuit determined that the 2005 amendment did not apply retroactively, and we agree. See Wilson v. State ex rel. Oklahoma Tax Comm'n, 1979 OK 62, ¶ 6, 594 P.2d 1210, 1212 (A clear expression of legislative intent is required to overcome the presumption that statutes operate prospectively only.). However, the defendant argued in the motion for summary judgment that the Legislature was making a change in Oklahoma's law, and the plaintiffs argued that the 2005 amendment was merely a clarification of the existing law.

IV. THIS COURT'S RECOGNITION OF WRONGFUL DEATH ACTIONS DUE TO PRENATAL INJURY

¶ 11 This Court first addressed a wrongful death action due to prenatal injury in Howell v. Rushing, 1953 OK 232, 261 P.2d 217. The opinion adopted the rule that since a stillborn child could not "maintain an action at common law for injuries received by it before its birth," the personal representative or next of kin could not bring a cause of action under the wrongful death statute. Id. ¶ 0, 261 P.2d at 217. The Howell opinion summarily adhered to the rationale and decision in Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229 (1951).

¶ 12 In Drabbels, the plaintiff alleged that his child was delivered in approximately the eighth month of pregnancy, that it was viable and capable of an independent existence at the time of delivery, and that defendants caused the child's death. The Nebraska court disallowed a wrongful death action based on (1) fear of fraudulent claims and evidentiary difficulties, (2) the mother-child as one unit theory, and (3) the fact that a stillborn child could not maintain an action at common law. Drabbels ruled that there was no wrongful death action for a stillborn child whose death-causing injury occurred before birth. Id. at 232.

¶ 13 The next time that the issue of a wrongful death action due to prenatal injury...