*1 Hudаk, Wife, Individually Michael Ann H. J. HUDAK and His Hudak, Joseph and as Co-Administrators of the Estates of Deceased, Hudak, Hudak, David Deceased and Michael De- ceased, Appellants, GEORGY, M.D., Lyon, Copper,
Farouk M. and Hippel, Georgy Collins, P.C., Appellees, and Collins, M.D., Appellee.
Leonard Pennsylvania. Supreme Court of Argued May 1991. Resubmitted Feb. 1993.
Decided Nov. 1993. Reargument Denied Dec. *2 Pichini, Philadelphia, appellants. for D.
Roberta Bonetti, Harrisburg, Dennis Phillips and J. Joseph appellees. FLAHERTY, ZAPPALA, NIX, C.J., and
Before MONTEMURO, PAPADAKOS, and JJ. CAPPY OPINION MONTEMURO, Justice. action for is whether an appeal
The raised issue of can be maintained on behalf wrongful death and survival alive, life but were unable to sustain born triplets were of their birth. premature because Mrs. Hudak became The case are as follows: facts under care of Drs. and was the November pregnant Collins; Lyon, Cooper, Hip- and Farouk M. Leonard Georgy, (“Doctors”). Collins, Doctors spe- and P.C. pie, Georgy, had and and gynecology, cialize in the area of obstetrics infertility. In January Mrs. Hudak treating triplets. Hudak carrying that Mrs. was ultrasound revealed approximately 24 when Mrs. Hudak was April On into After experiencing went labor. pregnant, weeks she her Mrs. Hudak was even- contacting physicians, difficulty Williamsport Hospital. the Dr. Collins tually togo advised and administered Rotodrine in present hospital, was at the After Mrs. Hudak’s contrac- stop order the contractions. ceased, Geisinger she transferred to Medical Center. tions were delivered caesarian following triplets the day However, All of bom alive. two section. birth, twenty room minutes after delivery died three ten hours later. The died approximаtely and the third child triplets were delivery, time of parties stipulated that womb, therefore, life outside the incapable of sustained were not viable. death1 an action under
The Hudaks court, The trial triplets. acts2 on behalf of the and survival motion, death and Doctors’ dismissed upon the cannot be maintained claims that an action concluding survival the trial court had a non-viable fetus. After on behalf of appellate the case for immediate certifying entered an order its review, reversing oрinion support the court issued an prior order. that our prior Court determined appeal, Superior
On
issue,
on the
and affirmed
dispositive
was not
precedent
Court held:
Specifically,
dismissal.
legisla-
of intent from the
any expression
the absence
Court,
cannot
analysis by
Supreme
our
any
ture
attaining viability
should
prior
decide that fetuses born
*3
that children
have
rights
accorded the same
now be
Wrongful
been accorded under
attained
have
Acts.
Death and Survival
(1989).
14,
Pa.Super.
390
Hudak v. law, this area of thе clarify important allocatur to granted now reverse. 20, 1982, 1409, Act, No. Wrongful Death Act of December P.L.
1. The 201, 8301, 326, II, pertinent § provides part: § art 42 Pa.C.S.A. (a) pre- may brought procedures under General Rule.—An action rules, by general damages recover for the death of an scribed wrongful neglect by the act or or unlawful violence individual caused by damages brought negligence or of another if no action for injured during individual his lifetime. (d), (b) provided right Except as in subsection Beneficiaries. — action created this sеction shall exist for the benefit of deceased, parents spouse, whether or not citizens children damages or residents of this Commonwealth or elsewhere. proportion in the recovered shall be distributed to beneficiaries they personal estate of the decedent in the case of would take the person intestacy liability and without to creditors of deceased Commonwealth. under the statute 586, 142, 2, Statute, July § 42 2. The Survival Act of P.L. No. provides: § Pa.C.S.A. 8302 proceedings, personal, All causes of action or real or shall survive defendant, plaintiff one or the death of the or of the or the death of joint plaintiffs more or defendants.
155
be main-
may
and survival
wrongful
An
for
death
“individual”,
defined to
which is
behalf of an
term
tained on
§ 1991. The survival
1 Pa.C.S.A.
person”.
mean a “natural
the death of
action shall survive
provides
act
that all causes of
is born
Thus,
a child that
the issue is whether
plaintiff.
our
death
person
purposes
alive is a natural
if
non-viable at
infant
considered
and survival acts even
Hudaks assert
of its birth. The
the time
liability
making viability
prerequisite
erred
Court
agree.
live birth. We
where there was
(1985),
Levin,
199,
In Amadio v.
First, jurisdic- Court noted that a of action on behalf the “estates recognize tions now they received while fatal stillborn ventre sa mere”. 509 Pa. viable children en Second, we that our recognized at 1086-87. are in nature and should be
and survival statutes remedial Third, in proving held difficulties construed. liberally *4 complete a damages operate should not as either causation Fourth, allowing demonstrated bar we recovery. of a not fetus would death actions behalf stillborn wrongful recovery parents. Finally, a windfall of double permit is inability to take distribution explained stillborn’s how is accumulated. determining when wealth irrelevant action for a cause of we did not eliminate only infant on behalf of an wrongful stated, “[tjoday’s holding a moment. Indeed we survives merely recovery it clear that the afforded the estate of makes a stillborn no different than the afforded the recovery estate of a child that dies within seconds its release from its Levin, mother’s womb.” Amadio v. 509 Pa. (1985) added).
1085, Court, (emphasis in terms of couching the issue whether infants born alive the same rights “should now be accorded [as] viability,” have attained has turned our decision Amadio on its head. The was not the viability issue whether standard supplant only should live birth as the relevant measure of a person, when fetus becomes whether a viable stillborn but fetus should be treated the same as a child born alive. Therefore, Amadio did not affect the rule permitting wrong- ful death action for a child that is born alive.
Moreover,
interjecting
concept
viability
into a situa
tion where a child born
confuses the
Viability
alive
issue.
capacity
describes the
of the unborn to survive outside the
womb, and is not relevant when an infant
birth.3 Not
survives
jurisdiction
surprisingly,
accepts
Doctors’ assertion that
must
at the
of birth in
child
be viable
time
order to maintain
Indeed,
in wrongful
argument
an action
death.
the Doctors’
viability
dispositive
rather than live birth is the
consider
ation in
the existence of an action for
determining
wrongful
See,
Association,
rejected.
Group
death has been
Health
Inc.
(1983)
Blumenthal,
v.
295 Md.
157 Green, also, F.Supp. birth); Brown v. 767 see 50 minutes after (D.D.C.1991) soon dying born but fetus alive (previable 273 care).4 injuries by negligent for caused may after birth recover Hudak immaturity that the argument The Doctors’ with the recovery is also inconsistent bar operates to provides: of Torts. Seсtion Restatement Second § Harm to Unborn Child
(1) child harm to an unborn tortiously causes One for harm the child is to the child subject liability to if bom alive.
(2) alive, liability is no unless not bom there If the child is provides. statute so death applicable added). (Second) § (emphasis Tort Restatement recovery behalf of that permitting The Doctors assert liability. to limitless born alive will lead “non-viable” children par- and argue physicians the Doctors’ both Specifically, to of an aborted potentially ents liable the estatе would specious. Liability argument fetus is bom alive. This to for attaches caused neglect negligence act or or unlawful violence “wrongful § a under- Certainly, 8301. woman another.” Pa.C.S.A. Constitution, or protected by physician act a taking an act, scope of would not come within the performing lawful liability. does to address the issue of whether attempt
This case not birth, time, prior there to when fetus becomes point is a insistence, advocating Contrary Cappy’s Mr. we are neither Justice permits unequivoсally a cause of abandonment of fetus, we, fully developed nor are as is further of a action for Rather, expand beyond suggested, attempting its own facts. Amadio application of to the it is dissent which advocates the case, fully developed present death of a fetus is not involved. where the Further, attempt agree Cappy’s dismiss the we do not with Justice brief, by characterizing them triplets, as existence of however 6). (Dissent disagree merely “signs of birth.” at We having shown live description level еndurance implication with of this that some being qualify living as an individual must be achieved before can manner, jurisdiction qualified Act. has life in this under the No Pennsylvania born alive. a cause are denied not be first. should of our death and person purposes survival acts. (1993). See, Bubnis, Coveleski v. Rather, reaffirming proposi- we are the unremarkable today *6 is, qualification, person. tion that an infant born alive without always live birth has been and should remain a clear line Since demarcation, an action for death аnd survival can triplets. be maintained on behalf of the Hudak Accordingly, we reverse.
LARSEN, J., did not in the decision of this case. participate NIX, C.J., concurring opinion. files a CAPPY, JJ., dissenting opinions. FLAHERTY and file Justice, NIX, concurring. Chief I I join opinion authored Mr. Justice Montemuro. however, separately, my write reconcile views the dis Levin, 199, 230, senting Amadio v. 509 Pa. 501 A.2d opinion (1985), with the instant facts. injury I wrote that the mother’s action personal adequately compensate any injuries would sustained case, however, stillborn fetus. In the instant these сhildren minutes, twenty lived outside of the womb for at least and one time, child for ten hours. In that these survived ultimately completely independent suffered and died result, any mother. As a action on behalf of the mother to for her compensate encompass her would not damages that these children suffered after their birth. There fore, death and action only wrongful survival maintained on behalf of these children will them adequately compensate injuries. Accordingly, join. their I FLAHERTY, Justice, dissenting. appeal
The issue raised on this is whether an action for money damages based death and survival acts infant, may brought be on behalf of a non-viable unable to prematurely. survive because it was born The holds may that such an action “a because action child, children, actually exists for a or that die after live birth. this from departure in Hudak would be contrary holding A Bubnis, rule.” Coveleski
(1993), I from view. n. dissent delivery, at the time parties stipulate were, non-viable, i.e., immaturity, incapa- because they living outside the womb. ble of in its view case was correct present Court under no cause action heretofore there existed fetus. or acts in favor a non-viable survival may bring defines the “individual” who legislature as a merely context survival a non- direction that person,” legislative and absent “natural individual,” sug- ordinary usage language fetus “an viable Levin, Further, Pa. it not. gests that (1985) case simply application has no child, stillborn, perfectly it but formed since involved *7 had it born alive.1 would have been viable nonetheless, insist that the Hudak Appellants, law, Pennsylvania with full under rights livе-born individuals thus, bring and, their are entitled to representatives that behalf. wrongful death actions their survival and fetus, essence, born, claim, in is a non-viable prematurely that of existence outside the womb independent incapable mother, meaning an within the of is “individual” death and survival statutes. to the analysis in where this writer dissented may recover under view that a stillborn child
majority’s in that acts, required survival is similar to wrongful death and Amadio, however, in has been criti- argument case. My cized because it “circular”: major objeсtion permitting
The second
a
is the
on behalf of
stillborn child
and survival actions
According to this rea-
nature of such actions.
“derivative”
provide
recovery
Act
soning, neither
“was intended
decision,
4-3
since Mr. Justice
Additionally,
Amadio was a
Zappala
concurring opinion
has
in Amadio that Amadio
stated
his
cases,
"viability”
future
it is
dispose
question
of
does not
present case.
incontrovertible that Amadio cannot control
cases where the
on whose behalf the suits were
person
alive,” and
purposes monetary
was never
“[f]or
Dissenting
child was never alive.”
recovery,
stillborn
Flaherty,
Kopp,
at 2. See also Scott v.
Opinion
J.
961;
415 Pa. at
Skloff,
431 A.2d at
Carroll
reasoning
fallacy
This
succumbs to the
A.2d at 10-11.
circular
commonly
reasoning
identified as
petitio principii,
Thus a fetus is not considered to
begging
question.
rights
have certain
because it has not been born. No
legal
could not
logic
given why
rights
reason in
these
be
birth, only
they
to a child
are not.
ascribed
before
legal rights
is whether or not
question presented
When
ascribed,
cannot
answered
question
simply
should be
the law does not do so.
by stating that
Mr.
(concurring opinion,
“Proximate cause”—in itself an unfortunate term —is merely placed upon the limitation which the courts have *8 actor’s for the of his conduct. responsibility consequences sense, consequences go In a the of an act philosophical go and the of an event back to eternity, fоrward to causes discovery beyond. trespass of America and “The fatal the of all our But to any attempt done Eve was cause woe.” upon such a basis would result in impose responsibility acts, society infinite for all and would “set liability edge litigation.” on and fill the courts with endless As a matter, practical legal responsibility must be limited to closely those causes which are so connected with the result in justified imposing law the is significance and of that such for the liability be to boundary must set Some liability. act, of some social idea the basis any upon of consequences or justice policy. Ed.1971). (4th Torts, To § Prosser, p. Law 236-37 The for the liability set boundary upon must be that some say as a act, expressed is sometimes consequences any causation, saying to that analogous in problem proximate to subject some wrong must be recovery any given the limitation. reasonable should fetuses argue wish to that non-viable
Those who damages sought here money actions for bring entitled to the available would, expаnd recovery potentially necessity, insist, this, presum- in such as and would plaintiffs to cases parents it who will receive though even is the ably, that awarded, the non-viable money injury whatever I, hand, on other believe parents. fetuses as well as to the is to the proved, if such is compensable injury, compensated, they are parents and that when the parents, whole, possible extent is ever have made themselves, although they The non-viable fetuses the law. sense, religious metaphysical may persons well be born and able being persons lives in the sense of were never i.e., normally lawsuits. bring who living, beings to continue therefore, have cause action under The should triplets, statutes, and Court death and survival dismissing persons these actions. was correct case, legal remedy have parents, injured their behalf. own
CAPPY, Justice, dissenting. death1 and majority finds an action behalf of that were survival2 can be maintained on sustain life because their “born alive” but were unable to reaching birth. this conclusion premature courts which refused allow asserts that lower 8301(a). § 1. Pa.C.S. § Pa.C.S. 8302. *9 Levin, v.
of action have taken the decision Amadio
509 Pa.
(1985)
(Major-
Company,
(1964). Scott, Marko, and
47, 202
A.2d
Skloff,
under the
cause of actiоn
held that a
Carroll
*10
fully
of a
brought on behalf
could
survival statutes
and
parameters
the
expanded
Amadio
born alive.
formed infant
recognizing a
by
actions
and survival
of the
death
a stillborn viable
thereunder
behalf
action
to alter
the line
of Amadio was
The impact
infant.
bring
to
right
the
by expanding
in such actions
demarcation
capable
infants who were
on behalf of those
action
“viable”—
effectuate the
as to
outside the womb—so
sustaining life
of action.
of the cause
purpose
remedial
require-
arbitrary “live birth”
the former
abandoning
By
ment,
construction
we feel a liberal
longer will
accomplished. No
will be
survival statutes
and
a tortfeasor who
that enables
doctrine
legal
sanction
we
one
rendering
while
liability,
full
escape
death to
causes
an-
consequences
in its
less severe
wrongdoing is
whose
action
negligence
or other
death
swerable
survives birth.
his victim
merely because
omitted).
(citation
Amadio,
205,
Upon actions, these permitting states of our sister the attitude knowledge has ad- that medical arguments Appellants’ and against the position our we first formulated vanced since the time has actions, conclude that of these maintenance sister states and the twenty-eight our join for us to arrived wrong- and that survival recognize and District of Columbia the estates of stillborn ful actions lie en ventre viable children they received while fatal mere. sa (footnote omitted;
Amadio, A.2d at 1086-87 509 Pa. at added). emphasis conclusion, previous objections to ex-
In reaching to death and survival right bring wrongful panding to the failure of the damages parents; double action—i.e: “individual”; problems as an with statute to fetus speak jurisdic- in other damages; authority and proof of causation tions; property of a fetus inherit inability and the —were in Amadio. overcome mаjority in obstacles, surmounting these jurisdictions in other weight authority upon great relied I note that little has knowledge. medical advances field in our sister states within medical changed either since Amadio that would abandonment of justify sudden a survival action. prerequisite bringing as a written, Amadio jurisdictions twenty-eight
At
the time
for a viable fetus. Since
recognized a cause
*11
excluding
thirty-four jurisdictions,
the number has risen to
jurisdictions,
as
Pennsylvania.4
recognize
those
We
factor, the
of live birth was not
key
question
where a non-
Very
few cases have
considered
issue.
note
majority
correctly
The
does
viable fetus is born alive.
in those
recognized
jurisdic-
that a cause of action has been
jurisdictions
recognize a cause of action for
viable fetus
4. The
which
(D.D.C., 1971);
University,
F.Supp.
323
529
are:
v. Howard
Simmons
Shores,
95,
(1974);
Ala.
300 So.2d
Eich
293
354
v. Town
Gulf
of
Court,
467,
(1985);
144 Ariz.
165 situation, as unusual with the have been faced tions which alive.5 fetus is born herein, non-viable where the presented a cause of action permit that we majority The advocates birth, viability. regardless of a live signs there are whenever extending justification I find non-viable fetus. of action to a in reach- in Amadio other factor cited knowledge. in medical advancement conclusion was the
ing its ability of medical with Court was concerned The Amadivo This outside the womb. the viable fetus technology to sustain jurisdictions cited most often factor is the one fetus.6 death of a viable a cause of action permit beyond the reasoning expand fallacy attempting actually however, little has considerations of the demarcation determination in the medical changed Wade, created Roe approach the trimester viability since (1973). 705, 147 113, 35 L.Ed.2d 93 S.Ct. 410 U.S. “the fetus Roe stated Supreme Court
The United States
outside the
‘viable,’
is,
able to live
potentially
becomes
seven
womb,
aid ... at about
albeit with artificial
mother’s
weeks)
earlier,
(28
even at
[viability] may occur
but
months
omitted).
(footnote
Pres-
160,
at 730
Id. at
93 S.Ct.
weeks.”
to expect
that it is futile
technology recommends
ent medical
(1974);
Clinic,
v. AMICA Mutual
Miccolis
268 Or.
518 P.2d
Woodward,
Co.,
al.,
(R.I.1991);
A.2d 67
Fowler
Insurance
et
(1964);
Question
Matter
There have abandoning point as the ogy justify would from its mother expect separate can exist fetus action non-viable a cause of to a logically support granting in Amadio Thus, recognizing fetus. the rationale offered of a fetus does of action on behalf viable wrongful death cause advocated support position not instant case. decision, I dispute a most difficult must
Although it is if to be a fetus is majority, rationale of the and insist Pennsylvania wrongful a cause of action under granted act, can be such cause extended herein, I respect- the reasons forth must viable fetus. For set yet dissent. fully, emphatically, COVELESKI, Prosequendum the Estate Administrator Karen Deceased, Baby Coveleski, Right, in her own as Mother Coveleski, Deceased, Appellants, Baby and Natural Guardian Bowers, Jr.; Township; Raymond BUBNIS, A. L. Zerbe Vincent Sr., Tavern; Rail Corner and Consolidated t/d/b/a Corporation, Appellees. Pennsylvania.
Supreme Court of Argued May 1991. 24, 1993.
Submitted Feb.
Decided Nov.