Appeal from the Order entered August 23, 1983 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 479 March Term 1983.
Mark I. Bernstein, Philadelphia, for appellants.
Donald J. Sweeney, Philadelphia, for Booth, appellee.
Rowley, McEwen and Hoffman, JJ. McEwen, J., files a concurring opinion.
[ 345 Pa. Super. Page 530]
This appeal is from an order sustaining preliminary objections in the nature of a demurrer to appellants' amended complaint.*fn1 Appellants raise four issues in their brief:
1. May the Administrators of the estate of a stillborn child and the father of the child, in his own right, recover damages for the death of the child during childbirth caused by the negligence of the attending obstetrician?
2. May the Administrators of the estate of a stillborn child and the father of the child, in his own right, recover damages for the breach of the warranty of due care in the delivery of the child or for the lack of informed
[ 345 Pa. Super. Page 531]
consent as to the procedures used in the delivery of the child?
3. May the father of a stillborn child, in his own right, recover damages for the emotional distress caused by the death of his child resulting from the negligence of the attending obstetrician where the father witnessed the entire procedure and the death in question?
4. In light of the provisions of the Abortion Control Act of 1982, 18 Pa.C.S. 3201 et seq., and the decisions in thirty-one other states, is the decision in Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9, and its progeny controlling in medical malpractice by an obstetrician during delivery which results in death three minutes prior to the delivery of the stillborn child?
Appellant Georgette Justice, while pregnant with the decedent child, was under the care of appellee Phillip Glass, M.D., who was associated with appellee Booth Maternity Center. The pregnancy was uneventful except for a minor fall which occurred on February 4, 1982, when Ms. Justice was nine months pregnant. Two days later, she was admitted to Booth Maternity Center. During delivery, complications arose which resulted in the stillbirth of the child.
Appellants, Georgette Justice and Richard Mays, on their own behalf and on behalf of the estate of their stillborn child, filed a complaint which alleged negligence and breach of warranty on the part of appellees with regard to the delivery of the decedent.
We note at the outset that our study here is subject to the well established precept that "[i]n reviewing a demurrer we must accept as true all well-pleaded facts and the reasonable inferences therefrom. A demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer." Douglas v. Schwenk, 330 Pa. Superior Ct. 392, 393, 479 A.2d 608, 609 (1984) (citations omitted).
[ 345 Pa. Super. Page 532]
The principal inquiry of this appeal is whether the estate of a stillborn child may recover in a civil action at law for damages which occur as a result of negligent pre-natal care. Appellants acknowledge that our Supreme Court has specifically disallowed such suits and stated that, "whereas an action will lie on behalf of an infant born alive for damages resulting from injury tortiously inflicted during the infant's fetal existence, neither a survival action nor a death action will lie in the case of a stillborn infant." Scott v. Kopp, 494 Pa. 487, 490, 431 A.2d 959, 961 (1981) (emphasis in original). See also Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). Appellants, nevertheless, argue that the Pennsylvania Legislature ...