*1 Hudak, Hudak, HUDAK, Joseph Ann H. Michael J. Deceased, Hudak, Deceased and Michael David
Hudak, Deceased, Appellants,
v. GEORGY, M.D., Lyon, Cooper, Hipple, M. Farouk Collins, P.C., Appellees. Georgy and Hudak, Hudak, HUDAK, Joseph Ann H. Michael J. Deceased, Hudak, Michael David Deceased and
Hudak, Deceased, Appellants, COLLINS, M.D., Appellee. Leonard Pennsylvania. Superior Court of Argued Sept. 1989. Dec. 1989.
Filed 8,May Appeal Granted 1990. for Allowance of Petition *2 Pichini, Philadelphia, appellants. D. for Roberta Bonetti, Harrisburg, appellees. Dennis CIRILLO, Judge, President and BECK and Before JOHNSON, JJ.
PER CURIAM: addressed presents single This case a issue never before Wrongful The issue is whether a Pennsylvania court. action will lie on behalf of a fetus Death and Survival alive, which, although concededly born was allegedly in nothing at the time of We hold that the law viable birth. suggests that such a cause of action exists Pennsylvania ground decline to create it on the do so overstep proper judicial would be boundaries function. Hudak, brought Ann Michael
Appellants are who medical as individuals and malpractice instant both capacity Joseph, their as co-administrators of the estates of Hudak, Appel- Michael three fetuses. David and non-viable profession- are Drs. and the medical Georgy lees Collins associated, corporation Lyon, Cooper, al with which they Collins, Hippie, Georgy & P.C. care of appellees infertility
Mrs. Hudak was under the Mrs. Hudak early in the 1980’s. became early experienced miscarriage. thereafter pregnant shortly but again pregnant, In late Mrs. Hudak was found to be evening April On the triplets. this time with answering defendants’ service to alert Mrs. Hudak called cramping. On Dr. Geor- experiencing them that she was Dr. advice, hospital Hudak where gy’s Mrs. went medi- began administering Dr. duty. was on Collins Collins The treat- her contractions. stop cation to Mrs. Hudak to another Mrs. Hudak was transferred ment succeeded and by doctors her treatment was administered hospital where other however, than defendants. The next day, Mrs. Hu- dak’s contractions recommenced. The triplet fetuses were delivered caesarean section late that afternoon. Two of alive, the fetuses allegedly were born but died min- within third, alive, utes of allegedly birth. also placed respirator on a but died in the early morning hours of the next day.
Appellants allege that defendants negligent fail- ing properly to treat Mrs. Hudak stop premature her night April labor on the 10th. They basically allege that unduly treating defendants Mrs. delayed Hudak and that delay resulted the deaths of the fetuses. In addition to the and survival actions brought fetuses, of the three appellants behalf also behalf, brought actions for on their own alleging physical injuries to Mrs. Hudak and emotional distress to *3 Mr. and Mrs. both Hudak as a result of the loss of three These actions are not at fetuses. issue here. Appellees sought wrongful to have the death and survival actions dismissed on the ground that Pennsylvania law does recognize a cause of for wrongful death and survival on behalf of a fetus. parties stipu- non-viable The lated the record the court that the three below fetuses herein involved were non-viable at the time of and that birth incapable living non-viable was be understood to mean outside the of immaturity. womb because
On the trial court issued an February order defendant’s motion granting entering to dismiss and judg- Appellants ment in their took this timely appeal. favor. Determination of the issue presented depends upon inter- Wrongful Acts, Death and pretation pursu- Survival brought ant to the instant appellants action. Noth- ing express language in the of either Act addresses this Wrongful issue. The Death Act simply provides cause of action exists “for the death of an individual caused wrongful neglect act or or unlawful violence or if no damages brought of another action for
17 his 42 injured during individual lifetime.” Pa.Cons. Statutory StatAnn. Reference to the Con- § “individual”, struction Act reveals that word whose allowed, recovery is is defined to mean a “natural (1989). However, person”. Pa.Cons.Stat.Ann. § is not phrase person” “natural defined. Survival Act part, that all causes of action provides, pertinent only plaintiff. shall the death of the Id. survive Pa.Cons.Stat. Ann. 8302. §
Thus, nothing the face the statutes tells us as to whether a non-viable fetus should be considered an individu- may brought al on whose behalf a death action or is plaintiff whether a non-viable fetus who had a cause the pregnancy action which survives when terminates. Moreover, indicated, Supreme as the Court has “... legislative Wrongful Death history ... reveals [of Act] of any regarding proper an absence tion____” indication resolu- presented of issues like the one this case. (1985) Levin, (empha- supplied). sis express guidance
In this vacuum of statutory legisla- history, prior judicial interpretations tive look to they the Acts to ascertain whether are instructive. This is unfruitful. authority equally search As the discus- illustrates, there is no pronouncement sion that follows Pennsylvania directly presented law on the issue and those addressing provide princi- cases related issues do not clear ples applied resolving that can be the issue. regarding
Two
Court decisions
*4
to the
prenatal injuries
arguably pertinent
recover
presented.
issue
The first
is the 1960 decision of the
267,
Kneale,
401 Pa.
164 A.2d
Supreme Court
Sinkler v.
(1960). The
that the
mother
complaint alleged
plaintiffs
had
in a car accident when she
one
been involved
was
and that
pregnant
plaintiff
injuries
month
with
received
Mongoloid.
at that time caused her to be born
by plaintiff
268,
plaintiff
Id. at
believed
birth, this
moment of
view was
body
mother’s
until the
its
The Court
medical authorities.
longer supported by
no
cause of action should
negligence
further stated that
allegedly
injuries
simply because
not be barred
Id.,
Appellant in the instant case because allowed actions survival involved herein were born alive that the fetuses alleged isit required. disagree. is We fact is all that and that Sinkler did plaintiff Since death, that case did in the child’s plaintiff not result For the death and survival. wrongful actions involve of the reason, question not involve the Sinkler did same raised at which is viability of birth significance regarding case. The Sinkler Court’s comments instant viability of at significance were addressed viability to a not ipso pertinent and are the time of facto of action for a cause discussion whether a fetus not viable at the lie on and survival should behalf time of birth. is Court decision pertinent
The second
Levin, 509 Pa.
Amadio, plaintiff-parents
alleged that
plaintiffs’
had caused
stillbirth
tors’
child at the time
birth.
a full term
daughter, who was
wrongful death
plaintiffs’
The trial court dismissed
holdings
Court
actions,
prior Supreme
relying
survival
lie on
actions did not
and survival
wrongful death
v. Kopp,
494 Pa.
children. See Scott
of stillborn
behalf
Philadelphia Transporta
v.
Marko
(1981);
A majority opinion, coupled with a review of the concurrence authored lengthy Zappala dissenting Justice and the various opinions, reveals that Amadio is not a decision Court presented on the issue the instant case. Nor does Amadio impliedly any particular command result when Amadio applied presented to this case. The issue con- wrongful availability cerned the death and survival term, viable, of action to the of full i.e. causes estates but In granting stillborn children. these actions to such plain- tiffs, only prior the court eliminated the to such barrier However, requirement actions—the of live the court birth. did not determine whether such actions would lie where potential another barrier to the action exists—that sues on of a plaintiff behalf fetus that never achieved viability. Zappala point As Justice was careful out: in this case Complaint
Because
asserts that Jennifer
at the time the allegedly
was “viable”
child]
[the
Thus,
permitted.
for
these cases can be construed to mean
plaintiff,
death and survival should
none of
that,
absent the stillbirth of the
despite
the cause of action would have been allowed
non-via-
bility at birth.
death,
conduct of the defendants caused her
negligent
in circumstances
questions
implicating
involved
“viabili-
*6
day.
in other
left for another
ty”
ways
be
J.,
n.
Id.,
(Zappala,
Examination of the
substantiates Justice
did not decide
Zappala’s
majority
statement.
whether
the causes of action. Nor
non-viability would have barred
Supreme
instruct us as to how the
majority opinion
does the
if presented
decide the issue before us
with it.
Court would
us
remaining opinions
give
do the
clear
Nor
dissent,
Nix, writing
opines
Chief Justice
guidance.
majority appears
assign
to
reading,
his
“...
of the fetus.”
upon
viability
of action’ based
‘new cause
(Nix, C.J.,
dissenting).
at 1104
Id.,
This
expressions
legisla-
have no
are in uncharted seas. We
guidance
to
nor do we have
from
rely,
intent on which
tive
the nature of the issue before
Supreme
Court. Given
to create the
us,
up
legislature
that it is
to the
we conclude
of intent
any expression
of action. In the absence of
cause
Court,
our
legislature
any analysis by
from
attaining
prior
cannot decide that fetuses born
viabili-
rights
the same
that children
should now be accorded
ty
under the
have been accorded
viability
who have attained
Nix
Death
Acts. As Chief Justice
Wrongful
and Survival
wrote
his dissent Amadio:
public policy
fundamental
principle
It is a cardinal
legislative
through
ascertained and articulated
should be
illustration,
For
through judicial
fiat and not
edict.
assign
this “new cause
action”
majority appears
This
favor
option
of the fetus.
upon
viability
based
one of
conception
upon
touches
opposed
viability
as
day. Clearly,
of our
questions
the most controversial
satisfactorily be resolved
cannot
disputes of this nature
court decisions.
C.J.,
(Nix,
dissenting).
at 1104
Id.,
I that the agree However, I look to would have been dismissed. should support to alleged been sufficient injury an had whether considering viability of the fetus the prior of action to cause recovery. an element of as prior for trial this had consolidated
These actions been preliminary objections filed The defendants had appeal. respect with adequacy complaints challenging the specifics and the of each. injury alleged negligence, the I recognize overruled. case, the were objections each overruling preliminary objections the earlier orders appeal. us on this directly before interlocutory and A.2d Barbieri, 563, 462 Rosenwald order Nevertheless, to review the invited we have been ap- and dismiss—final motion the defendants’ granting plaintiffs upon of the named as to three pealable — materially advance appeal may this representation matter, 1312(a)(5). see Pa.R.A.P. termination ultimate I complaints Since that the believe fail to an allege cognizable action, trespass I would affirm the trial reaching court without the issue my colleagues so ably have addressed. complaints
The filed at Nos. 83-02248 and 84-01045 trial court are virtually identical. Each Paragraph avers: carelessness,
8. As a result of the negligence, gross negligence and recklessness of defendants]____ Jo- seph Hudak and David Hudak were caused to sustain resulting in 11, 1983, their deaths on April and Michael Hudak was caused to sustain injuries which April 12, resulted in his 1983. only alleged other reference injuries to the appears Paragraph 20,
fetuses under Count III of each it Complaint, where is averred: Solely by carelessness, 20. reason of the negligence, gross negligence, and of defendants]____ recklessness Hudak, deceased, Joseph Hudak, deceased, David and Hudak, deceased, Michael prematurely and disabling sustained severe and injuries which caused the deaths of Joseph 11, 1983, David Hudak on April death of Michael Hudak on April after each undergone great had pain suffering.
A Stipulation Joint for Purpose Facts of Appeal was parties 25,1988. filed on October From stipula- tion, Hudak, learn Ann *8 H. the plaintiff/mother, had been treated by the defendants for the infertility, that “due date” for triplets 1, 1983, of the delivery August and by that the delivery April 11, Caesarian section occurred on parties 1983. The stipulated fetuses, further that the three immaturity, because their were not capable living outside womb. propounded
The defendants a of interrogatories first set plaintiffs. to the Interrogatories 52, numbered and 59 sought relating all information injuries allegedly by sustained the fetuses. Interrogatory No. 59 sets forth: sus- detail all separately 59. Describe treatment, a tained the decedent as result this action is based. upon or examination surgery immediately the Interrogatory The Answer set forth below is: Medical Records. Williamsport Hospital Geisinger
See to the Answers to Neither records are attached hospital in the certified record or otherwise included Interrogatories this court. before negligence, the plaintiff cause of action
To state a
proximate
a
of that
or
legal duty,
duty,
a
breach
plead
cause,
or
damage
injury. Boyce
v. United
legal
actual
(1971);
446 Pa.
Corporation,
States Steel
(1970);
A.2d 889
Kirby
v.
437 Pa.
Lojeski,
Whitner
A.2d 220
An
Carlisle,
Pa.Super.
v.
damage
if
lies
or
is caused
only injury
Sloan,
360,
I extract am unable plead- or other Interrogatories, Stipulation to Answers or remotely suggest any injury even ings which would of any three fetuses as a direct result any trauma act, action, the defendant obstetricians. or failure 2(a), plain- that the Interrogatory requesting response were sustained by in detail what injuries tiff/mother state upon which this action was her a result of the treatment as based, responded: Ann H. Hudak plaintiff imminent, decedents was
(a) premature When birth improve Ann a Caesarian section underwent sur- This abdominal the babies. chances for survival incapacitation, hospitalization, pain, resulted gery scarring. period and long recuperative section suggestion that the is no Caesarian absolutely There normal, or fetuses anything but procedure was procedure. as result of that by my cases reviewed noteworthy that all of the It is inju- prepartum trauma colleagues involve distinguished while sustained fetus alleged to have been ry *9 24 Levin, of 199,
womb
the mother.
509 Pa.
501
(1985)
A.2d 1085
received in the
of
(injuries
womb
mother);
Kopp,
Scott v.
487,
494
(1981)
Pa.
The parties stipulated fetuses, have the three be- cause of not immaturity, living their capable out- case, being side womb. This I do not believe general allegation of negligence contained in Paragraph Complaint each is sufficient to plead a cause of action. I do not understand how and disabling “severe injuries” referred to in 20 could Paragraph have “caused the deaths Joseph and David Hudak Hudak”, ... ... Michael “injuries” such not further where referred to anywhere in the Complaint parties agreed and the have that life was possible outside the womb. I reach the my
Since same conclusion as col- esteemed leagues dismissing would affirm the order the surviv- actions, al and wrongful different reasoning, albeit I concur in the result.