Vaillancourt v. Medical Center Hospital of Vermont, Inc., 4-80
| Decision Date | 05 November 1980 |
| Docket Number | No. 4-80,4-80 |
| Citation | 425 A.2d 92,139 Vt. 138 |
| Parties | . of the Estate of Baby Girl Vaillancourt, Sandra M. Vaillancourt, and James R. Vaillancourt, Individually v. MEDICAL CENTER HOSPITAL OF VERMONT, INC., and John D. Lewis. Supreme Court of Vermont |
| Court | Vermont Supreme Court |
Leslie S. Linton, of Sylvester & Maley, Burlington, for plaintiffs.
Spencer R. Knapp, of Dinse, Allen & Erdmann, Burlington, for Medical Center Hospital.
Pierson, Affolter & Wadhams, Burlington, for Lewis.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This is an interlocutory appeal, with three certified questions, resulting from denial by the trial court of motions filed by the defendants to dismiss the complaint for failure to state a cause of action. V.R.C.P. 12(b)(6). The facts alleged in the complaint, which must be assumed for the purposes of this appeal, may be summarized as follows. The defendant Medical Center Hospital of Vermont, Inc., (Hospital) conducts a general hospital in Burlington. The defendant John D. Lewis is a doctor of medicine, specializing in obstetrics. Plaintiffs are husband and wife, who had engaged the services of Dr. Lewis. In the evening of August 13, 1977, Mrs. Vaillancourt was admitted to the hospital with a diagnosis of pregnancy and active, early labor. She was an "increased labor risk" because she was about 19 days past her estimated date of confinement. Mr. Vaillancourt, who had attended child birth classes, accompanied his wife to the hospital, and was with her during the entire period of labor and delivery, giving her assistance. The hospital failed to provide adequate monitoring of the fetus, and none at all for a period of 31/2 hours, abandoning Mrs. Vaillancourt, as is alleged, without medical care and attention. At the end of this period, the fetus had died, an event the defendants could have prevented.
Dr. Lewis is claimed to have been negligent in failing to advise the hospital of Mrs. Vaillancourt's "high risk status" and other data, in failing to administer appropriate tests, and in failing to supervise and instruct hospital personnel.
The plaintiffs seek relief for:
1. Wrongful death of the fetus under 14 V.S.A. §§ 1491, 1492, by action of Mr. Vaillancourt as administrator. A similar recovery for the parents is claimed under common law.
2. Personal injury to Mrs. Vaillancourt, her pain and suffering and her emotional distress.
3. Mr. Vaillancourt's expenses for his wife's care and for loss of consortium. He also seeks to recover for his own emotional distress and substantial physical injuries resulting therefrom.
Although the defendants' motions to dismiss were addressed to the complaint as a whole, they conceded upon hearing, and upon argument here, that Mrs. Vaillancourt's claims for her own personal injuries, and her husband's claim for medical expenses and loss of consortium, were sufficiently pleaded to survive dismissal. These issues are therefore not before us.
Presented for our review, however, are the three issues certified by the trial court. Carefully worded, they may be summarized as follows: (a) the existence of a right of recovery for negligently caused wrongful death of a full term, unborn, viable child, either at common law or under 14 V.S.A. §§ 1491, 1492; (b) the existence of a right of recovery for emotional distress resulting in substantial bodily injury to husband and wife present at the scene of the fetus' claimed wrongful death, and (c) the existence of a right of recovery for a husband's emotional distress associated with fear for his wife's life, with accompanying physical injury to the husband, occasioned by his presence at the scene of the fetus' death. We consider these issues in that order.
With respect to the first question outlined, the trial court did not reach the issue of whether recovery for the wrongful death involved here has a basis in common law. It based its ruling that recovery is permitted upon its interpretation of our wrongful death statute, 14 V.S.A. §§ 1491, 1492. Neither do we consider determination of that particular point requisite to decision. We note the conflict of authority upon the question. Cf. Annotation, "Modern Status of Rule Denying a Common-Law Recovery for Wrongful Death," 61 A.L.R.3d 906 (1975). But we base our decision allowing recovery upon interpretation of the wrongful death statute. In our view the statute is remedial in nature, designed to alleviate the harsh common law rule of no liability because the person injured had died. As such, it must be given liberal construction. In re Dexter, 93 Vt. 304, 312, 107 A. 134, 137 (1919). Whether or not in "derogation" of the common law, a question perhaps open to debate, the statute is clearly designed to remedy an inequity in the common law, and to fill a void repugnant to general equitable principles.
So construed, the presence of liability under our wrongful death act becomes a compelled conclusion. The statutory remedy is for the death of a "person." For the reasons hereinafter discussed, we hold a viable fetus, though later stillborn, to be within the meaning of that term.
Rights of an unborn child are no stranger to our law, even though the precise question presented is one of first impression and we are without statutory history helpful to decision. The intestate rights of a posthumous child are recognized in 14 V.S.A. § 555. The period of gestation is recognized as a component of the rule against perpetuities. 27 V.S.A. § 501; In re Peck's Estate, 96 Vt. 183, 186, 118 A. 527, 528 (1922). 18 V.S.A. § 5231(b), the definition section of the Uniform Anatomical Gift Act, describes "decedent" as including a stillborn infant or fetus. And 18 V.S.A. § 5201, referring to "a dead body of a person," was construed, prior to additional legislation (18 V.S.A. § 5201 et seq.), to include the body of a fetus. 1956 Op.Atty.Gen. 158.
There is an undeniable split of authority upon the proper interpretation of the word "person" in a wrongful death statute. Extensive enumeration of the holdings in other jurisdictions would serve no useful purpose; they are collected and discussed in Annotation, 84 A.L.R.3d 411 (1978). There some twenty-five jurisdictions are listed as allowing recovery, with twelve opposed. The trend of authority seems to allow recovery. 1 S. Speiser, Recovery for Wrongful Death, 564 (2d ed. 1975). All but two of the states allowing recovery use viability, that point in time when the fetus is capable of independent life or survival when separated from its mother, as the line of demarcation. Annotation, 84 A.L.R.3d 453 (1978). The fetus here involved is alleged to have been, and must therefore be assumed to have been, viable.
Numerous reasons have been assigned by the several jurisdictions for reaching the conclusion to which we subscribe. The ones commonly given, and in our view convincing, are summarized in White v. Yup, 85 Nev. 527, 536, 458 P.2d 617, 622 (1969) as follows:
A. If a child, injured when a viable fetus as a result of another's negligence, has a cause of action when born, then it can make...
To continue reading
Request your trial
-
Justice v. Booth Maternity Center
...383 So.2d 1037 (La.App.1980); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (1980); Vaillancourt v. Medical Center Hospital of Vermont, Inc. , 425 A.2d 92 (Vt.1980).It may be noted that of the foregoing twenty-seven jurisdictions: (1) Georgia holds: a fetus becomes a child when......
-
Price v. Delta Airlines, Inc.
...been within the `zone of danger' and subject to a reasonable fear of immediate personal injury." Vaillancourt v. Medical Ctr. Hosp. of Vermont, Inc., 139 Vt. 138, 143, 425 A.2d 92, 95 (1980). See also Leo v. Hillman, 164 Vt. 94, 101, 665 A.2d 572, 577 (1995) (reaffirming the zone of danger ......
-
Clohessy v. Bachelor
...Pipe & Foundry Co., 570 S.W.2d 861 (Tenn.1978); Boucher v. Dixie Medical Center, 850 P.2d 1179 (Utah 1992); Vaillancourt v. Medical Center Hospital, 139 Vt. 138, 425 A.2d 92 (1980).10 The Supreme Court of Pennsylvania had earlier adopted the zone of danger rule in Niederman v. Brodsky, 436 ......
-
Witty v. American General Capital Distributors, Inc.
...Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975); Vaillancourt v. Medical Center Hospital of Vermont, 139 Vt. 138, 425 A.2d 92 (1980); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 ......
-
STARE DECISIS, WORKABILITY, AND ROE V. WADE: AN INTRODUCTION.
...(West 2019); VT. STAT. ANN. tit. 14, [section][section] 1491, 1492 (2019) (as interpreted by Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 425 A.2d 92, 93-94 (Vt. 1980)); VA. CODE ANN. [section] 8.01-50(B) (2019); WASH. REV. CODE [section] 4.24.010 (2019) (as interpreted by Moen v. Hanson, ......
-
Wrongful Death of the Fetus: Viability Is Not a Viable Distinction
...117 R.I. 177, 365 A.2d 748 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Vaillancourt v. Medical Center Hosp., Inc., 139 Vt. 138, 425 A.2d 92 (1980); Moen v. Hanson, 85 Wash. 2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W. Va. 431,184 S.E.2d 428 (1971); Kwaterski v......
-
Ruminations
...1082 (1984). [113] Rennie v. State, 171 Vt. 584, 762 A.2d 1272 (2000). [114] Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980). [115] In re Steady, 161 Vt. 636, 641 A.2d 117 (1994). [116] Barrett v. Adirondack Bottled Gas Corporation of Vermont, 145 V......