Presley v. Newport Hospital, 74-188-A

• Decision Date: 08 November 1976
• Docket Number: No. 74-188-A,74-188-A
• Citation: 117 R.I. 177,365 A.2d 748
• Parties: , 84 A.L.R.3d 391 Eleanor D. PRESLEY et al. v. NEWPORT HOSPITAL et al. ppeal.
• Court: Rhode Island Supreme Court

Page 748

365 A.2d 748

117 R.I. 177, 84 A.L.R.3d 391

Eleanor D. PRESLEY et al. v. NEWPORT HOSPITAL et al.

No. 74-188-Appeal.

Supreme Court of Rhode Island.

Nov. 8, 1976.

[117 R.I. 203] Aisenberg & Dworkin, Alan T. Dworkin, Thomas H. Quinn, Jr., Providence, for plaintiffs.

Hanson, Curran, Bowen & Parks, Kirk Hanson, Davis P. Whitman, Providence, for Newport Hospital.

Hinckley, Allen, Salisbury & Parsons, Robert W. Lovegreen, Providence, for Frank J. Logler and Aquidneck Medical Associates, Inc.

OPINION

PAOLINO, Justice.

This is an appeal from a summary judgment entered in the Superior Court in the defendants' favor.

The facts, for present purposes, are not in dispute. On December 22, 1969, plaintiff Eleanor D. Presley, being pregnant, was admitted to the Newport Hospital for the purpose of inducing labor. The complaint alleges that defendant, Frank J. Logler, M.D., negligently prescribed drugs to induce labor and that he thereafter failed to properly supervise the inducement of labor. The principal allegation made by plaintiffs is that as a direct and proximate result of the described negligent conduct, Jane Doe Presley, a viable fetus, died on December 30, 1969, having been stillborn.

Eleanor D. Presley and Lewis G. Presley, individually and as surviving parents and sole beneficiaries of the said Jame Doe Presley, on November 17, 1971, brought suit under the Wrongful Death Act, G.L.1956 (1969 Reenactment) § 10-7-1 et seq. for the wrongful death of Jane Doe Presley, 'a viable fetus, who died intestate, en ventre sa mere.' Named as defendants in the suit were Frank J. Logler, M.D., individually and as agent and servant of Aquidneck Medical Associates, Inc. and Newport Hospital. In the same three counts, plaintiff, Eleanor D. Presley, seeks damages for physical and emotional injury, and plaintiff, Lewis G. Presley, seeks consequential damages therefor.

Before the matter was brought to trial, plaintiffs filed a motion for partial summary judgment as to the common defense that plaintiffs had failed to state a claim upon which relief might have been granted. Each defendant responded by filing a cross-motion for summary judgment. These motions were heard by a justice of the Superior Court on the narrow issue of 'whether or not the wrongful death of a fetus entitles its parents, as beneficiaries, to maintain the statutory action' for wrongful death. On June 26, 1974, he rendered a decision denying plaintiffs' motion and granting the motions filed by defendants. The complaint as to the claim for damages for wrongful death was denied and dismissed. Judgment was entered accordingly on July 3, 1974.

The sole question presented by this appeal is whether an action for wrongful death will lie where the decedent was a stillborn fetus. To state the issue more specifically, we must decide whether the parents of an unborn fetus, as statutory beneficiaries, are entitled to damages for the wrongful death of that fetus where both the alleged negligently inflicted injury and the death of the fetus occurred before birth.

The right to bring an action to recover damages for the death of another is conferred by statute. The Rhode Island Wrongful Death Act is patterned after the original Lord Campbell's Act which created a theretofore unrecognized remedy which had as its primary intent the compensation for the loss sustained by widows and children in the eventuality of the death of the family breadwinner. Thus, our statute, insofar as it tracks its English predecessor, is in derogation of the common law and as such only confers upon parties and courts such privileges and powers as may be consistent with a strict construction of the terms and language employed. Carrigan v. Cole,35 R.I. 162, 165, 85 A. 934, 935 (1913). Consistent with this mandate we turn to the wording of our statute insofar as is relevant to the current proceedings. Section 10-7-1 provides:

'Liability for damages for causing death.-Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured * * *.'

The statute, in essence, sets forth three requirements for the existence of a right of action in wrongful death. 1) There must be a person who has died. 2) The person must have died of injuries resulting from a wrongful act, neglect or default that would have conferred a right of action upon the person who died, had that person survived. 3) The act, neglect or default that caused the fatal injury must have been performed by another. The facts in the pleadings, if taken to be true, indicate that the second and third requisites for this action are indisputably present. Wrongful neglect is alleged and defendants are alleged to have committed that wrongful neglect. Thus, although the Superior Court justice's decision, in relying very generally upon a dissent to an Illinois case, Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973), does not rest explicity on the point, we must conclude that judgment was granted in defendants' favor on the basis of a finding that a stillborn fetus is not a 'person' within the meaning of the statute, that is, that the first requirement of § 10-7-1 was not satisfied.

Our task in this case can therefore be narrowed to a consideration of whether a strict construction of the language of § 10-7-1 permits a reading of the word 'person' to include a fetus which dies en ventre sa mere. This is a question of first impression in this jurisdiction.

The status of the unborn has long been an especially troublesome area of the law. In Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.R. 242 (1844), the Supreme Judicial Court, in an opinion written by Mr. Justice Holmes, denied recovery to an administrator who sued on behalf of a prematurely born child for injuries sustained while the child was a nonviable fetus en ventre sa mere. The court held that an unborn fetus has no jurisdical existence; that, until its birth, it is an integral part of its mother. Thus, no right of action could accrue to an unborn fetus. Id. at 17, 52 Am.R. at 245.

This view remained virtually unassailed and was widely subscribed to by courts in other jurisdictions for many years. See, e.g., Gorman v. Budlong, 23 R.I. 169, 49 A. 704 (1901). The first audible dissenting voice was that of Mr. Justice Boggs in his dissent to the opinion of the Supreme Court of Illinois in Allaire v. St. Luke's Hosp., 184 Ill. 359, 56 N.E. 638 (1900) (Boggs, J., dissenting). It was his view that whenever a child in utero reaches the stage of viability, that is, that period in a child's fetal development when it becomes capable of independent life, and subsequently is born alive, '* * * such child has a right of action for any injuries wantonly or negligently inflicted upon his or per person at such age of viability though then in the womb of the mother.' Id. at 374, 56 N.E. at 642.

The first meaningful departure from the Dietrich position occurred in 1946 in the case of Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946). That case was an action brought by an infant to recover damages for prenatal injuries negligently inflicted by a physician in the course of delivery. The court branded Mr. Justice Holmes' view as being anomalous, especially in view of intervening scientific advances, and espoused the view that "* * * a child, if born alive and viable should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother." Id. at 142.

Bonbrest and its progeny set the conceptual stage for the decision 3 years later by the Supreme Court of Minnesota in Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). That case involved the alleged negligent supervision of a childbirth which caused the mother to die of a ruptured uterus and caused her viable child to be stillborn. A wrongful death action was brought by the father for the death of the child and the defendant's demurrer to the action was sustained by the trial court. Citing Mr. Justice Boggs' dissent in Allaire and the court's opinion in Bonbrest, the Minnesota court reversed and held that under that state's wrongful death statute a right of action accrued in favor of a stillborn fetus that had attained the developmental stage of viability. The court stated that '(i)t seems too plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises * * *.' Verkennes v. Corniea, supra at 370-71, 38 N.W.2d at 841.

Numerous jurisdictions, including our neighboring states of Connecticut, Gorke v. Le Clerc, 23 Conn.Sup, 256, 181 A.2d 448 (Super.Ct. 1962), and Massachusetts, Mone v. Greyhound Lines, Inc., Mass., 331 N.E.2d 916 (1975), have participated in this retreat from Mr. Justice Holmes' original pronouncement. In fact, it has now become the majority view that where an unborn viable fetus suffers a negligently inflicted injury, the law should not permit a differentiation, for purposes of wrongful death, between the child who dies just before birth and the one who dies shortly after birth. See Chrisafogeorgis v. Brandenberg, supra 55 Ill.2d at 370-71, 304 N.E.2d at 89-90; Annot., 15 A.L.R.3d 992, 995-99 (1967). In attaining this result, many courts rely on the proposition, attributed to the civil law, that from the moment of conception a separate organism with its own indentity comes into existence. See, e.g., Bennett v. Hymers, 101 N.H. 483, 485, 147 A.2d 108, 110 (1958). Other authorities cite the corresponding medical proposition, that an ovum, once it is fertilized, is a separate living entity. See,...