Shaw v. Jendzejec

• Decision Date: 12 August 1998
• Docket Number: Docket No. Y
• Citation: 717 A.2d 367
• Parties: Charmaine B. SHAW v. Stephen M. JENDZEJEC et al. or-97-440.
• Court: Maine Supreme Court

Page 367

717 A.2d 367

1998 ME 208

Charmaine B. SHAW v. Stephen M. JENDZEJEC et al.

Docket No. Yor-97-440.

Supreme Judicial Court of Maine.

Argued Jan. 5, 1998.

Decided Aug. 12, 1998.

Jared R. Green (orally), Kenneth C. Brown, Abramson, Reis, Brown & Dugan, Manchester, NH, D. Michael Noonan, Shaheen & Gordon, Dover, for plaintiffs.

Elizabeth A. Germani (orally), Ernest J. Babcock, Friedman, Babcock & Gaythwaite, Portland, for York Hospital.

Christopher D. Nyhan, Penny Littell, Preti, Flaherty, Beliveau & Pachios, L.L.C., Portland, for Jendzejec, York Family Practice and others.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

DANA, Justice.

¶1 Charmaine B. Shaw, the personal representative of the estate of Thomas L. Shaw, IV, appeals from a summary judgment entered in the Superior Court (York County, Calkins, J.) in favor of the defendants, Stephen M. Jendzejec, York Family Practice, and York Hospital, on her wrongful death claim. Shaw asks us to overturn our decision in Milton v. Cary Med. Ctr., 538 A.2d 252 (Me.1988), and hold that a viable fetus is a "person" whose heirs are entitled to maintain a cause of action pursuant to Maine's wrongful death statute, 18-A M.R.S.A. § 2-804 (1998). We affirm the judgment.

I.

¶2 The tragic facts of this case are not in dispute. On February 10, 1994, Charmaine Shaw was admitted to York Hospital for the delivery of her child after a full term pregnancy. During the labor, the baby's head was delivered up to his mouth and ears, but his shoulder became stuck on Charmaine's pubic bone. Approximately twenty minutes after he became stuck, the baby was delivered, but despite resuscitative efforts, he never had a heart beat or respiration and was determined to be stillborn. Charmaine and her husband, Thomas, filed a notice of claim pursuant to 24 M.R.S.A. § 2903 (1990 & Pamph.1997), ¹ alleging that the child's death resulted from negligence on the part of the defendants and seeking damages pursuant to Maine's wrongful death statute, ² as well as for their own pain and suffering and loss of consortium. After extensive discovery the defendants moved for a summary judgment on the wrongful death portion of the Shaws' claim, arguing that our decision in Milton v. Cary Med. Ctr., 538 A.2d 252 (Me.1988), precluded the Shaws' claim. The court granted the motion, and this appeal followed. ³

¶3 With this case, we must decide for the second time in ten years whether Maine law recognizes a cause of action for wrongful death brought by the parents of a stillborn fetus. In Milton, we answered this question in the negative by strictly construing Maine's wrongful death statute and held that recognition of such a cause of action would create an anomaly that would "do violence to the very fabric of the Probate Code." Milton, 538 A.2d at 255. Although a careful study of our decision in Milton reveals that the opinion contains several analytical flaws, we conclude that the force of stare decisis compels us to reaffirm its holding.

II.

¶4 In Milton, our use of an insulated method of statutory interpretation that declined to consider the rationales offered by other jurisdictions on this important issue was out of character. See Milton, 538 A.2d at 254. Indeed, we offered no explanation for deviating from our routine practice of examining how other courts have treated analogous statutes as at least one factor when interpreting our own statutes. See, e.g., Campbell v. Town of Machias, 661 A.2d 1133, 1136 (Me.1995) (cases arising under the federal Freedom of Information Act considered useful in analyzing the scope of Maine's Freedom of Access Act); Gordon v. Maine Cent. R.R., 657 A.2d 785, 786 (Me.1995) (appropriate to look to analogous statutes and case law for guidance when term is not defined in relevant statutory provisions or prior judicial decisions). Accord Levesque v. Chan, 569 A.2d 600, 601 (Me.1990); Town of Orient v. Dwyer, 490 A.2d 660, 662 (Me.1985) (relying on federal court interpretations of the federal rules when interpreting the parallel rules of Maine courts). "Similar statutes of other states comprise a type of extrinsic aid deserving of special attention in the process of interpretation." 2B NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 52.01, at 197 (5th ed.1992).

¶5 Next we engaged in the awkward exercise of trying to harmonize the provisions of the wrongful death statute with other provisions of the Probate Code. Although included with other probate laws in our statutes since 1944, an action for wrongful death is, and always has been, essentially a tort action. It is likely that the statute was placed with other laws governing probate procedure when Maine's laws were recodified in 1944 simply because the action is customarily brought by the personal representative of the deceased. There is simply no evidence that the Legislature's decision to place the statute within the probate provisions either in 1944 or when it adopted the Uniform Probate Code in 1981 was intended to change the law's meaning or interpretation in any way. See Dennis M. Doiron, A Better Interpretation of the Wrongful Death Act, 43 ME.L.REV. 449, 463-67 (1991). ⁴

¶6 Our determination that permitting a cause of action for the wrongful death of a viable fetus would grant the fetus rights that it does not have in the rest of the Probate Code, see Milton, 538 A.2d at 255, was also questionable. The wrongful death statute grants no rights to the deceased. The statute provides a cause of action only to the living relatives or heirs of the deceased. In this respect we confused the wrongful death cause of action with the survival cause of action, which is separately provided for in 18-A M.R.S.A. § 3-817. ⁵ The wrongful death cause of action, although dependent on a cause of action that the deceased would have possessed had death not ensued, ⁶ see 18-A M.R.S.A. § 2-804(a), is a separate and distinct cause of action that statutorily is granted to the deceased's family members or heirs. Because of our confusion on this point, we concluded that allowing the action following a stillbirth would somehow grant some legal right to the fetus that it did not have otherwise, when such is not the case.

¶7 Finally, our use of Maine's abortion statutes to support our conclusion that the word "person" in section 2-804(a) is defined as "one born alive" was curious, to say the least. See Milton, 538 A.2d at 255-56. Our statutes define the word "person" in numerous ways depending on the context in which the word is used. ⁷ The Probate Code itself defines "person" as "an individual, a corporation, an organization, or other legal entity." 18-A M.R.S.A. § 1-201(29) (1988). When the Legislature referred to a "human person" as "one born alive" in 22 M.R.S.A. § 1595 it did so explicitly for purposes of the chapter governing abortions only. ⁸ The circumstances presented in Milton did not implicate Maine's abortion law in any way, and our use of a statutory definition that was explicitly limited to the abortion context to support our holding in a wrongful death case was of limited value. Cf. Seeley v. Dir. of Bureau of Labor Standards, 505 A.2d 95, 96 (Me.1986) (attempt to import definition of "wages earned" from related statute unavailing).

III.

¶8 Nonetheless, in order to justifiably overturn the rule of law we adopted in Milton, our unease with the analysis undertaken in that case must outweigh the compelling policy of following judicial precedent. Stare decisis serves "the obvious need to promote consistency and uniformity of decisions." Adams v. Buffalo Forge Co., 443 A.2d 932, 935 (Me.1982); see also Myrick v. James, 444 A.2d 987, 997 (Me.1982) ("It is the historic policy of our courts to stand by precedent and not to disturb a settled point of law."). Pursuant to that doctrine,

a deliberate or solemn decision of a court, after argument on a question of law fairly arising in the case, the disposition of which is necessary to the determination of the case, is an authority or binding precedent in the same court and in other courts of equal or lower rank, in subsequent cases where the very point is again in controversy.

Myrick v. James, 444 A.2d at 997-98. Although we recognize that the analytical underpinnings of our Milton decision are subject to some criticism and understand that some may disagree with our conclusion in Milton, that decision was certainly the product of deliberate and solemn analysis.

¶9 In Myrick we articulated a set of guiding principles pursuant to which a prior decision may and should be overruled, stating that such action is appropriate when:

(1) the court is convinced that the rule of the prior decision operates harshly, unjustly and erratically to produce, in its case-by-case application, results that are not consonant with prevailing, well-established conceptions of fundamental fairness and rationally-based justice, (2) that conviction is buttressed by more than the commitment of the individual justices to their mere personal policy preferences, that is, by the substantial erosion of the concepts and authorities upon which the former rule is founded and that erosion is exemplified by disapproval of those conceptions and authorities in the better-considered recent cases and in authoritative scholarly writings, (3) the former rule is the creation of the court itself in the legitimate performance of its function in filling the interstices of statutory language by interpretation and construction of vague, indefinite and generic statutory terms, (4) the Legislature has not, subsequent to the court's articulation of the former rule, established by its own definitive and legitimate pronouncement either specific acceptance, rejection or revision of the former rule as articulated by the court, and (5) the court can avoid the most severe impact of an overruling decision upon reliance interests that may have come into being during the existence of the former rule by...