HUDAK v. GEORGY

OPINION

NIX, Chief Justice, concurring.

I join in the opinion authored by Mr. Justice Montemuro. I write separately, however, to reconcile my views in the dissenting opinion in Amadio v. Levin, 509 Pa. 199, 230, 501 A.2d 1085, 1101 (1985), with the instant facts.

In Amadio, I wrote that the mother's personal injury action would adequately compensate for any injuries sustained by the stillborn fetus. In the instant case, however, these children lived outside of the womb for at least twenty minutes, and one child survived for ten hours. In that time, these children suffered and ultimately died completely independent of the mother. As a result, any action on behalf of the mother to compensate her for her injuries would not encompass the damages that these children suffered after their birth. Therefore, only a wrongful death and survival action maintained on behalf of these children will adequately compensate them for their injuries. Accordingly, I join.

FLAHERTY, Justice, dissenting.

The issue raised on this appeal is whether an action for money damages based on the wrongful death and survival acts may be brought on behalf of a non-viable infant, unable to survive because it was born prematurely. The majority holds that such an action may be brought because "a cause of action exists for a child, or actually children, that die after live birth. A contrary holding in Hudak would be a departure from this rule." Coveleski v. Bubnis, 535 Pa. 166, 171, 634 A.2d 608, 610 (1993), n. 3. I dissent from this view.

The parties stipulate that at the time of delivery, the triplets were non-viable, i.e., they were, because of immaturity, incapable of living outside the womb.

Superior Court in the present case was correct in its view that heretofore there existed no cause of action under the wrongful death or survival acts in favor of a non-viable fetus. The legislature defines the "individual" who may bring an action in the wrongful death or survival context merely as a "natural person," and absent legislative direction that a non-viable fetus is "an individual," ordinary language usage suggests that it is not. Further, Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) simply has no application to this case since it involved a stillborn, but perfectly formed child, who would have been viable had it been born alive.

Additionally, Amadio was a 4-3 decision, and since Mr. Justice Zappala has stated in his concurring opinion in Amadio that Amadio does not dispose of the question of "viability" in future cases, it is incontrovertible that Amadio cannot control the present case.

Appellants, nonetheless, insist that the Hudak triplets were live-born individuals with full rights under Pennsylvania law, and, thus, that their representatives are entitled to bring survival and wrongful death actions on their behalf. The claim, in essence, is that a prematurely born, non-viable fetus, incapable of independent existence outside the womb of the mother, is an "individual" within the meaning of the wrongful death and survival statutes.

The analysis in Amadio, where this writer dissented to the majority's view that a stillborn child may recover under the wrongful death and survival acts, is similar to that required in this case. My argument in Amadio, however, has been criticized because it is "circular":

The second major objection to permitting wrongful death and survival actions on behalf of a stillborn child is the "derivative" nature of such actions. According to this reasoning, neither Act "was intended to provide a recovery in cases where the person on whose behalf the suits were brought was never alive," and "[f]or purposes of monetary recovery, a stillborn child was never alive." Dissenting Opinion of Flaherty, J. at 2. See also Scott v. Kopp, 494 Pa. at 490, 431 A.2d at 961; Carroll v. Skloff, 415 Pa. at 48, 202 A.2d at 10-11. This reasoning succumbs to the fallacy of petitio principii, commonly identified as circular reasoning or begging the question. Thus a fetus is not considered to have certain legal rights because it has not been born. No reason in logic is given why these rights could not be ascribed to a child before birth, only that they are not. When the question presented is whether or not legal rights should be ascribed, that question cannot be answered simply by stating that the law does not do so.

509 Pa. at 214, 501 A.2d at 1092, (concurring opinion, Mr. Justice Zappala). I cite this analysis of Mr. Justice Zappala because I think it is helpful in providing the direction that our deliberation should take. When fundamental perceptions are questioned, e.g., that a fetus is or is not an "individual," the justification given in support of the fundamental perceptions will ultimately rest on belief and policy. My reason for asserting that a fetus is not an "individual" for purposes of recovery under the wrongful death and survival acts is the belief that it is absurd to regard a non-viable fetus in the same way that we would regard a living person, and the policy that, as Prosser puts it, some boundary must be set to the consequences of any act:

"Proximate cause" — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of his conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the discovery of America and beyond. "The fatal trespass done by Eve was cause of all our woe." But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would "set society on edge and fill the courts with endless litigation." As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.

Prosser, The Law of Torts, § 41, p. 236-37 (4th Ed. 1971). To say that some boundary must be set upon liability for the consequences of any act, which is sometimes expressed as a problem in proximate causation, is analogous to saying that the recovery for any given wrong must be subject to some reasonable limitation.

Those who wish to argue that non-viable fetuses should be entitled to bring the actions for money damages sought here would, of necessity, expand the recovery potentially available to plaintiffs in cases such as this, and would insist, presumably, that even though it is the parents who will receive whatever money is awarded, the injury was to the non-viable fetuses as well as to the parents. I, on the other hand, believe that the compensable injury, if such is proved, is to the parents, and that when the parents are compensated, they have been made whole, to the extent that is ever possible in the law. The non-viable fetuses themselves, although they may well be persons in the metaphysical or religious sense, were never lives in being in the sense of persons born and able to continue living, i.e., beings who normally bring lawsuits.

The triplets, therefore, should have no cause of action under the wrongful death and survival statutes, and Superior Court was correct in dismissing these actions. The persons who were injured in this case, the parents, have legal remedy on their own behalf.

CAPPY, Justice, dissenting.

The majority finds that an action for wrongful death and survival can be maintained on behalf of triplets that were "born alive" but were unable to sustain life because of their premature birth. In reaching this conclusion the majority asserts that the lower courts which refused to allow this cause of action have taken the decision in Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) and "turned it on its head." (Majority opinion at p. 602). To the contrary, I assert that it is the majority here which now turns Amadio on its head. Further, I reject the majority's assertion that "interjecting the concept of viability into a situation where a child [is] born alive confuses the issue." (Majority opinion at p. 602). As I find viability to be the issue I am compelled to dissent.

42 Pa.C.S.A. § 8301(a).

42 Pa.C.S.A. § 8302.

The facts in this case reveal that Mrs. Hudak was under the care of the defendant physicians for infertility. In January of 1983 she was found to be carrying triplets. On April 10, 1983, at which point the fetuses were between 20 to 23 weeks gestational age, Mrs. Hudak went into premature labor. The following day the triplets were delivered by cesarean section. Within 20 minutes, attempts at resuscitation being unsuccessful, two of the triplets were pronounced dead in the delivery room. The third triplet was resuscitated and placed on a respirator. Life support was removed ten hours later and the third triplet was pronounced dead. The parties stipulated that at the time of delivery the triplets were incapable of sustained life outside the womb thus, they were not viable.

Although it is clinically possible for a non-viable infant to show signs of life as recognized by a layman, i.e., heartbeat, breathing, brain-wave activity, it is medically accepted that a non-viable infant lacks sufficient lung tissue to permit survival. Botkin, Delivery Room Decisions for Tiny Infants: An Ethical Analysis, 306 J. Clinical Ethics 307 (Winter 1990).

The question now before this Court is whether a cause of action for wrongful death and survival can be brought against the defendant physicians on behalf of the non-viable triplets. The majority concludes that as the triplets were "live born" the question of viability is immaterial and thus would allow the present action to proceed. Considering the impact of this Court's recent decision in Amadio regarding the question of viability in relation to the wrongful death and survival actions in Pennsylvania, I cannot accept the conclusion of the majority.

Amadio specifically overruled Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966); and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). Scott, Marko, and Carroll held that a cause of action under the wrongful death and survival statutes could only be brought on behalf of a fully formed infant born alive. Amadio expanded the parameters of the wrongful death and survival actions by recognizing a cause of action thereunder on behalf of a stillborn viable infant. The impact of Amadio was to alter the line of demarcation in such actions by expanding the right to bring an action on behalf of those infants who were "viable" — capable of sustaining life outside the womb — so as to effectuate the remedial purpose of the cause of action.

By abandoning the former arbitrary "live birth" requirement, we feel a liberal construction of the wrongful death and survival statutes will be accomplished. No longer will we sanction a legal doctrine that enables a tortfeasor who causes death to escape full liability, while rendering one whose wrongdoing is less severe in its consequences answerable in a wrongful death or other negligence action merely because his victim survives birth.

Amadio, 509 Pa. at 205, 501 A.2d at 1088 (citation omitted).

The decision in Amadio began a new era under the wrongful death and survival acts in Pennsylvania. The rationale for departing from our previous line of cases was set forth in the majority opinion:

Upon thorough review of our prior holdings, the change in the attitude of our sister states permitting these actions, and Appellants' arguments that medical knowledge has advanced since we first formulated our position against the maintenance of these actions, we conclude that the time has arrived for us to join our twenty-eight sister states and the District of Columbia and recognize that survival and wrongful death actions lie by the estates of stillborn children for fatal injuries they received while viable children en ventre sa mere.

Amadio, 509 Pa. at 203, 501 A.2d at 1086-87 (footnote omitted; emphasis added).

In reaching this conclusion, the previous objections to expanding the right to bring a wrongful death and survival action — i.e: double damages to the parents; failure of the statute to speak to a fetus as an "individual"; problems with proof of causation and damages; authority in other jurisdictions; and the inability of a fetus to inherit property — were overcome by the majority in Amadio.

In surmounting these obstacles, the majority in Amadio relied upon the great weight of authority in other jurisdictions and the advances in medical knowledge. I note that little has changed either in our sister states or within the medical field since Amadio that would justify the sudden abandonment of viability as a prerequisite to bringing a survival action.

At the time Amadio was written, twenty-eight jurisdictions recognized a cause of action for a viable fetus. Since Amadio, the number has risen to thirty-four jurisdictions, excluding Pennsylvania. We recognize that in those jurisdictions, as viability was the key factor, the question of live birth was not an issue. Very few cases have been considered where a non-viable fetus is born alive. The majority does correctly note that a cause of action has been recognized in those jurisdictions which have been faced with the unusual situation, as presented herein, where the non-viable fetus is born alive. The majority advocates that we permit a cause of action whenever there are signs of a live birth, regardless of viability. I find no justification for extending the wrongful death cause of action to a non-viable fetus.

The jurisdictions which recognize a cause of action for a viable fetus are: Simmons v. Howard University, 323 F. Supp. 529 (D.D.C., 1971); Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974); Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985); Hatala v. Markiewicz, 26 Conn. Sup. 358, 224 A.2d 406 (1966); Worgan v. Greggo Ferrara, Inc., 50 Del. 258, 128 A.2d 557 (1956); Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20 (1971); Dunn v. Rose Way, Inc., 333 N.W.2d 830 (Iowa 1983); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955); Danos v. St. Pierre, 402 So.2d 633 (La. 1981); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Pehrson v. Kistner, 301 Minn. 299, 222 N.W.2d 334 (1974); Terrell v. Rankin, 511 So.2d 126 (Miss. 1987); O'Grady v. Brown, 654 S.W.2d 904 (Mo. 1983); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (App.) writ quashed by 94 N.M. 806, 617 P.2d 1321 (1980); DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987); Hopkins v. McBane, 427 N.W.2d 85 (N.D. 1988); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Evans v. Olson, 550 P.2d 924 (Okla. 1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Miccolis v. AMICA Mutual Insurance Co., et al., 587 A.2d 67 (R.I. 1991); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Matter of Certification of a Question of Law From U.S. Dist. Court, Dist. of South Dakota, Southern Division, 387 N.W.2d 42 (S.D. 1986); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); Moen v. Hanson, 85 Wn.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W. Va. 431, 184 S.E.2d 428 (1971); Kwaterski v. State Farm Mut. Auto Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107 (1967).

Finding that the question of viability creates additional difficulties in determining causation, two jurisdictions steadfastly refuse to discuss the issue where the non-viable fetus is born alive. See Group Health Assoc., Inc. v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969).

The other factor cited by the majority in Amadio in reaching its conclusion was the advancement in medical knowledge. The Amadio Court was concerned with the ability of medical technology to sustain the viable fetus outside the womb. This factor is the one most often cited by the jurisdictions which permit a cause of action for wrongful death of a viable fetus. The fallacy in attempting to expand this reasoning beyond the considerations in Amadio, however, is that little has actually changed in the medical determination of the demarcation of viability since the trimester approach created in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

The jurisdictions which recognize a cause of action at the point that a fetus is viable rely heavily upon the well reasoned dissent of Justice Boggs, in Allaire v. St. Luke's Hospital, 184 Ill. 359, 366-69, 56 N.E. 638, 640 (1900). See also cases cited supra, note 4.

The United States Supreme Court in Roe stated "the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid . . . at about seven months (28 weeks) but [viability] may occur earlier, even at 24 weeks." Id. at 160, 93 S.Ct. at 730 (footnote omitted). Present medical technology recommends that it is futile to expect the survival of a fetus of less than 23 weeks gestational age. Botkin, Delivery Room Decisions for Tiny Infants: An Ethical Analysis, 306 Clinical Ethics (Winter 1990); Avery, Considerations on the Definition of Viability, 206 New England J.Med. (Jan. 23, 1975).

There have been no significant advances in medical technology that would justify abandoning viability as the point at which a fetus can expect to exist separate from its mother or to logically support granting a cause of action to a non-viable fetus. Thus, the rationale offered in Amadio for recognizing a wrongful death cause of action on behalf of a viable fetus does not support the position advocated by the majority in the instant case.

Although it is a most difficult decision, I must dispute the rationale of the majority, and insist that if a fetus is to be granted a cause of action under the Pennsylvania wrongful death act, such cause of action can be extended only to a viable fetus. For the reasons set forth herein, I must respectfully, yet emphatically, dissent.