Lead Opinion
TMs is аn action for wrongful death brought on behalf of the estate of a baby that died in defendant’s hospital shortly before its birth. Plaintiff appeals from the granting of a directed verdict in favor of defendant Kaiser Foundation Hospital.
The facts, insofar as they relate to the issues raised by tMs appeal, are substantially as follows, giving plaintiff the benefit of all favorable evidence, as required in such a case.
.Michealeen Libbee was admitted to the hospital on August 11,1969,'at about 2:30 p.m. for the delivery of her baby. At that time she was sis weeks and five days overdue. At about 7:30 p.m. Dr. George'saw her, ruptured her membrane, and noted that the amniotic
Mrs. Libbee was then monitored, including a check of the fetal heartbeat, approximately every half-hour by one of defendant’s registered nurses until 11 p.m., when that nurse went off duty and her duties were assumed by another registered nurse employed by the hospital. During that period Mrs. Libbee made very little progress in her labor.
The second nurse testified that she continued to monitor Mrs. Libbee every half-hour and that entries were made on the hospital records to that effect. Mrs. Libbee testified, however, that after the nurse checked her at about 12:30 a.m., she felt a different kind of a pain at about 1 a.m., and rang the bell to summon the nurse. She also testified that the nurse then “stuck her head in” and said that she would be back “in a moment,” but did not return until about 1:30 a.m.
At that time the nurse again monitored Mrs. Libbee and found that there were no fetal heart tones, as found on all previous occasions. A doctor was then summoned and a Caesarean operation was performed, but the ehild was dead upon delivery.
Medical testimony was offered by plaintiff that under these circumstances, including the discovery of meconium in the amniotie fluid, the fetal heartbeat should have been monitored every five minutes. In addition, the nurse herself admitted that it was “common practice” in defendant’s hospital for an LPN
In addition to contending that this evidence was insufficient to go to the jury on the issue of its negligence, the hospital raises the threshhold question whether an action for wrongful death of a stillborn baby can be maintained in Oregon — a question never before decided by this court.
1. An action for wrongful death of a stillborn child can be maintained in Oregon.
In Mallison v. Pomeroy,
In so holding this court chose to follow what we referred to as “the best reasoned modern judicial opinions,” despite substantial authority to the contrary.
Among the decisions cited with approval in Mallison (at 692) is Verkennes v. Corniea, 229 Minn 365,
“ * * Thе wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize separate existence for the purpose of redressing the tort.’ ”
The court in VerJcennes then went on to hold (at 841) :
“* * * It seems boo plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited.”
Since VerJcennes the courts of 19 jurisdictions now expressly permit an actiоn for the death of a viable unborn child.
(1) Precedent. This reason no longer applies because the weight of authority now favors recovery.
(2) An unborn child has no judicial existence apart from its mother. It is now recognized that there is no medical or scientific basis for such a proposition and it was expressly rejected by this court in Mallison, at least with respect to a viable unborn child. It has been predicted that “the requirement of viability will be scrappеd,”
The speculative nature of the proof of pecuniary-damages ¡on the death of an unborn child is one of the reasons why some courts deny recovery in such cases. In Oregon, however, the Wrongful Death Act has now been amended so as to no longеr limit damages in actions under the statute to pecuniary loss. Thus, effective January 1, 1974, ORS 30.020 now includes loss of society and companionship to the parents of a child as an item of damages. (Oregon Laws 1973, ch 718.) The measure of damages in this case may or may not be limited to those provided for under ORS 30.020 prior to that amendment. This, however, is no reason to hold that the unborn decedent in this case was not a “person” for the purpose of that statute.
To the same effect, courts of states which permit recovery in such cases have applied the usual rule to the effect that once a substantive right of a person is recognized, that right cannot then be denied because of possible difficulties in proof
Even under the previous provisions of the Oregon Wrongful Death Act this court has recognized that the ultimate issue in an action for wrongful death
Suppose, as did the court in Stidam v. Ashmore, 109 Ohio App 431,
While we recognize that some courts have denied recovery in such cases, after studying this problem we believe that the more persuasive reasons are those adopted by the majority of courts which now recognize a right of action in such cases. We also believe that in view of our previous holding in Mallison to the effect that a viable unborn child is a “person” for the purpose of being entitled to remedy by due course of law for injuries to his persоn, we cannot properly hold, without overruling Mallison, that there can be no remedy when such an injury results in death immediately before birth, as in this case.
For all of these reasons, we hold that the trial court was not entitled to direct a verdict in favor of defendants in this case on the ground that plaintiff had no right to bring an action for the wrongful death of the child who was the decedent in this case.
In addition to other allegations of negligence, plaintiff’s complaint alleged that defendant Kaiser Foundation Hospital Ayas negligent in that it “failed to properly and timely monitor * * * the child’s heartbeat Ayhile decedent’s mother Ayas in labor prior to delivery.”
Defendants contend that there Ayas no testimony to establish that defendant’s nurses (as distinct from the doctors) “should have recognized that additional care Ayas needed” and that this could only be established by expert testimony unless the doctors had given such instructions to defendant’s nurses.
Plaintiff responds by contending, in effect, that this Ayas not a matter requiring expert testimony and that, in any event, there Ayas evidence from Ayhich the jury could properly have found that defendant’s nurses Ayere aAyare of the fact that there Ayas a “problem” in this case and recognized that monitoring of the child’s heartbeat Ayas needed at least every half-hour. •
There Ayas evidence that under the circumstances presented by Mrs. Libbee’s pregnancy it Ayould have been customary medical practice to monitor the fetal heartbeat at least every half-hour. Some Ayitnesses testified that under these circumstances the fetal heartbeat should have been monitored every five minutes.
In addition, the attending nurse herself admitted that it Ayas “common practice in Kaiser Hospital for the LPN in the obstetrics Ayard” to monitor the heart
There was also evidence that Mrs. Libbee’s medical chart showed that monitoring had taken place at least every half-hour. This, of course, was contrary to the testimony of Mrs. Libbee that no one monitored the heartbeat for a period of one hour, from 12:30 to 1:30 a.m., despite the fact that at 1 a.m. she had “a different kind of a pain that would not subside” and rang а bell to summon a nurse, but that no nurse appeared until 1:30 a.m., at which time this unborn child was dead.
In our opinion, the jury could have reasonably inferred from this evidence that the purpose of the nurse in mailing the entry in Mrs. Libbee’s medical chart showing that the fetal heartbeat had been monitored every half-hour during that interval, when such was not the fact, was to make it appear that the fetal heartbeat had in fact been monitored at least every half-hour, as had been done at all times prior to 1 a.m. The jury could also havе inferred from these facts that the nurse would not have made such a false entry unless either (1) she knew very well that it was the customary, if not the required, nursing practice to monitor at least every half-hour under these circumstances, or (2) unless the doctor had given instructions to do so.
We hold that these were reasonable inferences which the jury could properly have drawn from the evidence in this case and that it was error for the trial court to refuse to submit the evidence to the jury so that it could have decided whether or not to do so.
For all of these reasons, it was error for the trial court to grant the motion for a directed verdict in favor of defendant hospital.
Reversed and remanded.
Notes
No error is claimed for the granting of a directed verdict in favor of defendant Permanente Clinic-or in favor of three doctors who were partners in that clinic. .....• -
Archer v. Rogers Construction,
Meconium is “The first intestinal discharges of the newborn infant, greеnish in color and consisting of epithelial cells, mucus, and bile.” Stedman’s Medical Dictionary (3d Lawyers ed 1972) 750.
A “viable” unborn child is one which has developed in its mother’s womb to the point that it is capable of independent existence outside its mother’s womb.
Connecticut: Hatala v. Markiewicz, 25 Conn Sup 358,
See also Speiser, Recovery for Wrongful Death 355-56, § 431 (1966); Annot., 15 ALR3d 992 (1967); Wrongful Death and the Stillborn Fetus — A Current Analysis, 7 Houst L Rev 449 (1970). See generally, Prosser, Law of Torts (4th ed 1971) 335-38, § 55.
California: Norman v. Murphy, 124 Cal App 2d 95,
Speiser, Recovery for Wrongful Death, 361, § 4.33. See.also Prosser, Law of Torts (4th ed 1971) 337, § 55.
Stidam v. Ashmore, 109 Ohio App 431,
Kwaterski v. State Farm Mut. Automobile Ins. Co.,
See Carlson v. Oregon Short Line Ry. Co.,
See Lane v. Hatfield,
O’Neill v. Morse,
We recognize, as pointed out by defendants, that in' our - decision in Mallison v. Pomeroy,
While these changes in Oregon statutes are of interest, we do not consider them to be controlling. Moreover, the Oregon legislature has made no corresponding change in its use of the word “person” for the purpose of the Wrongful Death Act (ORS 30.020), although it made other substantial changes in that statute in both 196'7 (Oregon Laws 1967, ch 544) and in 1973 (Oregon Laws 1973, ch/718).
For criticism of that decision, see Tribe, The Supreme Court 1972 Term, 87 Harv L Rev 1, 4 (1973); and Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L J 920, 924 (1973).
Dissenting Opinion
dissenting.
The only specification of negligence made against the defendant hospital was the failure to timely monitor the fetal heart tones or to instruct hospital personnel to do so. The hospital’s duty in this respect admittedly arose only because of the somewhat unusual circumstances of Mrs. Libbee’s pregnancy. This being the case, the alleged conduct invоlved professional malpractice, not ordinary negligence, and required proof >of the customary professional standard of care in such circumstances.
The defendant could not be held liable unless the care provided in this case failed to conform to the standard of care provided by hospitals in the’ community.
The majority reasons that the jury could have inferred that the nurse would not have made a false entry in the record unless (1) she knew that it was customary nursing practice to monitor at least every half hour, or (2) that the doctor had given instructions to do so.
The second inference would not be permissible because plaintiff’s own pleading and evidence are directly to the contrary. This leaves us with the inference that the nurse falsified the record because she knew that it was customary to monitor every one-half hour and she wanted to make it appear that she had complied with that customary practice.
In the first place it must be noted that there is no direct evidence in this case that the hospital record was falsified and absolutely no evidence that, assuming it was, it was falsified either by a nurse or by any other person qualified to establish the custоmary nursing practice. Yet, avoiding this problem, the majority finds it permissible to derive evidence of the customary practice from the fact that there were other entries on the. record showing monitoring intervals of one-half
If this reasoning is carried over into other cases charging negligent medical practice, the standard of conduct can hereafter be proved simply from defendant’s showing what was done in the particular case rather than by the testimony of doctors explaining what is the customary medical practice. Indeed, from now on there will apparently be a jury question in malpractice eases whenever there is a dispute bеtween the parties as to the facts of the case. Thus, what I had always thought to be the crucial issue in such cases— whether the care provided meets the standard prevailing in the community — has been rendered an irrelevant consideration.
The majority opinion, starting with the permissible inference that the record was falsified and building upon that, fashions an argument for liability which strikes me as ingenious. It certainly must not have occurred to counsel because the argument was never presented either in the briefs or in oral аrgument.
For this reason, those cases cited by the majority which hold that proof of professional standards is unnecessary where gross neglect or non-medical conduct is involved are inapposite. See e.g., Annotation: Necessity of expert evidence to support action against hospital for injury to or death of patient, 40 ALR3d 515 (1971).
Wood v. Miller,
Rehearing
ON PETITION FOR REHEARING
Defendants have filed a petition for rehearing in Avhieh they contend that we erred “'in holding that there was evidence from which the jury could find the hospital negligently caused the death of plaintiff’s decedent.”
Defendants contend that although the motive of the nurse in falsifying the hospital records to show that she monitored the heartbeat every one-half hour “may have been as suggested by the majority [i.e., that she knew that it Avas customary nursing practice to monitor every half-hour],” other inferences were also possible, such as (1) that she knew this not to be a “medical standard,” but “simply as a personnel rule,” or (2) that she wanted to cover up for a doctor, or (3) that the “gap in the medical records didn’t look right.”
In considеring this question we must remember that in addition to the fact that the nurse made an entry in the hospital records shoAving that the fetal heartbeat was cheeked during the interval of over one hour, contrary to plaintiff’s testimony that no such cheek was made, there was also the following additional testimony:
(1) There was medical testimony that under the circumstances presented by Mrs. Libbee’s pregnancy it would have been customary medical practice to monitor the fetal heartbeat at least every half-hour and some Avitnesses testified that under these circumstances
(2) The hospital records showed a pattern of checking the fetal heartbeat of this child approximately every half-hour prior to the period of over one hour during which, according to plaintiff, no such check was made.
(3) This nurse was a trained and experienced obstetrical nurse.
(4) The nurse admitted that she was aware of the fact that the amnio tic fluid was “stained” when the membrane was rupturеd and that this could “be a problem for the baby.”
(5) The nurse also admitted that it was “common practice in Kaiser Hospital for an LPN [Licensed Practical Nurse] to monitor the heart tones of the patient ‘quite frequently.’ ”
Considering this evidence, together with the evidence that the nurse made an entry in the hospital record from which it was made to appear that she continued her previous practice of checking the fetal heartbeat of the child every one-half hour during the interval of over one hour, desрite plaintiff’s testimony that no such check was made during that interval, the jury could have properly found, in our opinion, that the nurse made that entry because she realized that good nursing practice by a trained obstetrical nurse required the monitor of fetal heart of such a child at least every ■ half-hour under circumstances presented by Mrs. Libbee’s pregnancy, particularly when this trained obstetrical nurse not only admitted knowing that- the nursing practice at that hospital was that fetal heartbeats should be monitored “quite fre
To suggest that it was just as likely that such a nurse would falsify a record to “cover up for a doctor,” or to “fill a gap” in the record, nr because of a “personnel rule” is simply not realistic, in our opinion. In other words, the existence of those other possible inferences does not provide a defense in this case any more than the possible inferences which were rejected by this court in Cowgill, Adm’r v. Boock, Adm’r,
Defendants also contend, on the issue of causation, that “the cause of death was medical mismanagement of the doctors in failing to perform a Caesarean” some three hours earlier. At the time of trial, however, the doctors contended that they were not negligent in not taking the child sooner and the jury apparently agreed by its verdict in favor of the doctors.
Defendants’ petition also refers to testimony by the doctors that “the odds of the baby being born alive at the end of a 40-minute delay were incredibly low” and that “10 minutes was the outside limit on the ability of the child to survive without oxygen,” with the result that “it would be speculative to conclude that the child’s life would have been saved.” That testimony, however, did not go directly to the question of how long the baby would have survived if the heartbeat had been properly monitored and if proper steps had been taken promptly after the fetal heartbeat stopped.
The question to be decided in this case on the issue of causation is whether, assuming that it was proper to allow the mother’s labor to continue for a
It may be that the failure to monitor this baby during that period of over one hour was not the sole cause of its death. It is our opinion, however, that this was a question of fact for the jury and that under the record in this case the jury could properly find that this was a “substantial factor” in bringing about the death of this child. Cf. Babler Bros. v. Pac. Intermountain,
Defendants’ petition also requests that we expressly state that the judgment of the trial court in favor of all defendants other than defendant hospital is affirmed. We so hold. The only errors assigned on appeal related to the negligence of defendant hospital.
Defendants next ask that to avoid possible misunderstanding whether the measure of damаges in this case, as an action for wrongful death, is controlled by OES 30.020 prior to amendment by Oregon Laws 1973, ch 718, we set forth the provision of Section 7 of that Act. That section provides as follows:
“This act takes effect January 1, 1974, and applies to decedents dying on or after January 1, 1974.”
The petition for rehearing is denied.
Defendants also call our attention to an inadvertent error in footnote 1 of our opinion. In the preparation of the final draft we overlooked a correction of that footnote to read: “The jury-returned a verdict in favor of the defendant doctors and clinic,” in accordance with our understanding at that time of the record of this case.