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JOSEPH AMADIO AND REGINA AMADIO v. HARVEY M. LEVIN (12/04/85)

decided: December 4, 1985.

JOSEPH AMADIO AND REGINA AMADIO, ADMINISTRATORS AD PROSEQUENDUM OF THE ESTATE OF JENNIFER AMADIO, DECEASED, AND IN THEIR OWN RIGHT, AS HUSBAND AND WIFE, AND PARENTS AND NATURAL GUARDIANS OF JENNIFER AMADIO, DECEASED, APPELLANTS,
v.
HARVEY M. LEVIN, M.D., DANIEL J. COLUMBI, M.D., MARTIN ZELUCK, M.D. AND WESLEY W. BARE, M.D., APPELLEES



No. 106 Eastern District, Appeal Docket 1984, Appeal from the Judgment of the Superior Court dated February 10, 1984, No. 151 Philadelphia, 1982, Affirming the Order of the Court of Common Pleas of Philadelphia County, dated February 26, 1982, at No. 2989 September Term, 1981, Pa. Superior Ct., 472 A.2d 242 (1984).

COUNSEL

Jill M. Follows, Alan Schwartz, Philadelphia, for appellants.

Stanley P. Stahl, Gregory B. Hook, Susan M. Cohen, Philadelphia, for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., and Zappala, J., joined the Majority Opinion. Zappala, J., filed a concurring opinion in which McDermott, J., joined. Nix, C.j., filed a dissenting opinion in which Hutchinson, J., joined. Flaherty, J., filed a dissenting opinion. Hutchinson, J., filed a dissenting opinion in which Nix, C.j., joined.

Author: Papadakos

[ 509 Pa. Page 201]

Opinion OF THE COURT

Once again this Court is called upon to decide whether a right of recovery exists under our Wrongful Death Act*fn1 and Survival Statute*fn2 on behalf of a stillborn child who died as a result of injuries received en ventre sa mere.

The facts are not complicated and can be quickly summarized. Jennifer Amadio was the full-term unborn child of Joseph and Regina Amadio (Appellants), due to be delivered on September 28, 1979. On October 15, 1979, Jennifer was born stillborn at Methodist Hospital, Philadelphia, Pennsylvania. At delivery, Jennifer was a fully matured and perfectly proportioned seven pound eight ounce female.

On September 22, 1981, Joseph and Regina Amadio, in their own right, and as Administrators Ad Prosequendum of the estate of Jennifer, filed a Complaint in Trespass in the Court of Common Pleas of Philadelphia County, against Mrs. Amadio's obstetricians, Harvey M. Levin, M.D., Daniel J. Columbi, M.D., Martin Zeluck, M.D., and Wesley W. Bare, M.D. (Appellees) claiming that, as a result of their negligence, there were incurred medical expenses, burial expenses, a loss of earnings, loss of enjoyment of life, and physical pain and mental anguish.

Preliminary Objections to the Complaint were filed by Appellees arguing that Appellants' trespass action seeking recovery for injuries done to Jennifer Amadio en ventre sa mere was prohibited as a matter of law. By Opinion and

[ 509 Pa. Page 202]

Order of February 26, 1982, the Honorable Joseph P. Craig sustained the Preliminary Objections and dismissed Appellants' wrongful death and survival action. A timely appeal to Superior Court, 324 Pa. Super. 592, 472 A.2d 242, followed and by its Per Curiam Order of February 10, 1984, Superior Court affirmed the order of the trial court. We accepted allocatur to review our prior decisions and evaluate their viability in light of the current advance of medical knowledge and in light of the majority trend in our sister states in permitting survival and wrongful death actions on behalf of stillborns injured en ventre sa mere.

Prior decisions of this Court, 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), uniformly held that in order for a survival action to lie, there must be an independent life in being, surviving birth, which could have brought the action prior to death. Five reasons were usually cited for limiting survival and wrongful death actions to children born alive.

First, the Court surmised that the real objective of such a lawsuit was to compensate the parents of the deceased child for their emotional distress, and that since parents already had the ability in their own right to institute such an action, it would only be duplication to permit parents to file a second action on behalf of the estate of the child.

Second, because wrongful death actions are derivative, and since the Court refused to acknowledge that a stillborn child was an individual under the wrongful death or survival statutes, it was concluded that the Acts were not intended to provide for recovery by the estate of a stillborn child.

Third, extending causes of actions to the estates of stillborn children was felt to increase problems of causation and damages.

Fourth, the prior cases arose out of an era when most jurisdictions did not permit the filing of such actions. Prior

[ 509 Pa. Page 203]

    to our Carroll decision in 1964, only seven jurisdictions recognized the cause of action. (See our Footnote 3).

Fifth, it was reasoned that since only children born alive may take property by descent under our Intestate Laws, the Court assumed that the Legislature had already limited the creation of causes of actions to those instances where the existence or estate of a child was recognized by the laws of intestacy.

Appellants urge us to abandon these prior decisions requiring survival at birth in order to maintain an action for fatal injuries caused en ventre sa mere, and to adopt the majority view that requires only that the death dealing injuries occur when the child is viable en ventre sa mere. 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 those 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.*fn3 As will be seen, the reasons formerly relied on

[ 509 Pa. Page 204]

    to deny maintenance of such actions no longer are persuasive.

We have, since our decision in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), recognized that a child en ventre sa mere is a separate individual from the moment of conception, and have permitted that child to sue for injuries received during gestation when the child is born alive. Implicit in our holding in Sinkler is the acknowledgement that a child en ventre sa mere is an individual with the right to be free of prenatal injury. If a child en ventre sa mere is an individual at the time of its injury, then, a fortiori, the child is also an individual when those injuries cause its death, and it makes no difference in liability under the wrongful death and survival statutes whether the child dies of the injuries just prior to or just after birth.

In short, the "live birth" or "still birth" of a child will no longer be determinative of that child's status as an individual under our survival or wrongful death statutes. To be consistent with Sinkler and the body of medical knowledge underpinning it, we acknowledge a child en ventre sa mere to be an "individual," "having existence as a separate creature from the moment of conception." Sinkler, 401 Pa. at 273, 164 A.2d at 96. Henceforth, injuries received by a child while en ventre sa mere can form the basis for survival or wrongful death actions as maintained on behalf of a child born alive. Live birth can no longer be a limiting prerequisite to the maintenance of such an action. This is

[ 509 Pa. Page 205]

    consistent with Mr. Justice Larsen's dissent in Scott v. Kopp, Id., where he argues against drawing a line at the birth of a child, its viability, or some other arbitrary period of gestation, and instead concludes that the action should proceed to trial and let the orderly production of evidence by the adversaries prove or disprove causation, injury and damages in each case.

As we have observed in the past, our wrongful death and survival statutes create a derivative cause of action, but those statutes are remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act, which is to provide a cause of action against one whose tortious conduct caused the death of another. By limiting the right to bring an action to those children born alive, we were giving the statute a narrow reading and thereby perpetuating the much criticized rule of the common law which made it "more profitable for the defendant to kill the plaintiff than to scratch him." Prosser, Law of Torts, § 127 (4th Ed. 1971); O'Grady v. Brown, 645 S.W.2d 904 (Missouri, 1983).

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. Hopkins v. McBane, 359 N.W.2d 862 (N.D., 1984).

Our prior concern that such actions create difficulties in establishing proof, upon closer examination, must also give way. Difficulty in obtaining proof of the wrong should never bar the right to bring an action, once it is determined that a cause of action does, indeed, exist. Our caution in extending the right of suit on behalf of the estates of stillborn children may have partly had to do with our unfamiliarity with the problems that this type of litigation would spawn, but any such difficulties in proving damages

[ 509 Pa. Page 206]

    cannot be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who survived delivery for a few minutes, hours or days. These actions have been part of our law for some time, and we are confident that the experience gained from handling such matters has matured our bench to the point when we can now extend the application of these cases to cases where the child is born dead due to death causing injury while en ventre sa mere.

This Court's former view that the real objective of these lawsuits was to compensate the parents of their deceased children twice for the parents' emotional distress is not only incorrect, but if accepted, merely perpetuates the notion that a child is inseparable from its mother while en ventre sa mere. That view lumped medical and funeral costs incurred due to the injury to the child as elements of damages recoverable by the mother. Once the child is recognized as a separate individual, however, medical and funeral costs incurred as well as any economic losses are recoverable by the child's estate, not the mother.

In his dissent, as in the majority opinion he authored in Scott v. Kopp, 494 Pa. 487, 431 A.2d 487 (1981), Mr. Justice Flaherty makes the same illusory argument that parents will be given the opportunity of receiving a double recovery. Clearly, this is not the result of our decision today and the dissent does not explain what this imaginary double recovery is. The fact that parents will normally be the primary beneficiaries of damages recovered for the wrongful death of their child does in no way hold them out as avaricious or seeking a double recovery.

Since we recognize that the child's wrongful death is a separate injury from that of the mother's, the child's wrongful death is compensable in damages and the child's estate is the proper party to seek recovery for the decedent child's funeral and medical expenses and pecuniary losses under the Wrongful Death Statute and for the loss of earning power less the costs of maintenance and for the decedent's pain and suffering under the Survival Statute.

[ 509 Pa. Page 207]

The parents' pain and suffering caused by their child's negligent death has never been recoverable unless the pain and suffering was accompanied by or a result of a physical injury to the parent. See Scott v. Kopp, 494 Pa. at 490, 431 A.2d at 960. Vincent v. Philadelphia, 348 Pa. 290, 35 A.2d 65 (1944); D'Jorko v. Berwind-White Coal Mining Co., 231 Pa. 164, 80 A. 77 (1911). Strictly speaking, a parent's pain and suffering for the loss of its child is recoverable only as an element of the damages suffered because of an injury sustained to the person of the parent. The parent's injury has nothing to do with the deceased child's independent injuries or possible pain and suffering and as such is not a recoverable element of damages by the deceased child's estate.

Today's holding merely makes it clear that the recovery afforded the estate of a stillborn is no different than the recovery afforded the estate of a child that dies within seconds of its release from its mother's womb. In view of the current attitude throughout our sister states to let the representatives of the stillborn's estate prove their losses, it would be illogical to continue to deny that such claims could be established, when we permit them for the child that survives birth for an instant.

Our final reason for denying the right to bring an action involved an interpretation of the intestate statutes which were construed to provide that since a stillborn could not take by distribution, no distribution scheme for damages awarded under a survival or wrongful death action existed. Carroll v. Skloff, Id. While this logic merely confused the substantive right to maintain an action with the procedure to distribute estate assets, its effect was to use the rules of descent and distribution to qualify and limit how estate assets may be accumulated for individuals.

The intestacy scheme provided by the Legislature in no way limits or regulates the quality or quantity of an estate. It merely provides a scheme whereby distributions may be made for one who dies intestate. It does not regulate who may leave a distributable estate, only who may share in it

[ 509 Pa. Page 208]

    and, accordingly, we find no difficulty in concluding that since a child en ventre sa mere is an individual, a stillborn's estate which recovers for injuries under the wrongful death or survival statutes would distribute these assets by the rules of intestate succession (20 Pa.C.S. § 2101, et seq.).

In summary, today we reverse our prior holdings in Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964), and extend to the estate of a child born dead the right to institute a survival and wrongful death action for death-dealing injuries suffered while en ventre sa mere. We do not decide the criminal liability, if any, attendant upon causing the death of a child en ventre sa mere, for such is not the case before us today.

We reverse Superior Court's Order affirming the trial court's sustaining of Appellees' Preliminary Objections, and remand this case to the trial court for further proceedings.

Disposition

We reverse Superior Court's Order affirming the trial court's sustaining of Appellees' Preliminary Objections, and remand this case to the trial court for further proceedings.

ZAPPALA, Justice, concurring.

The question in this case is whether there exists a cause of action for negligence on behalf of a stillborn child which survives for prosecution by the parents/administrators under the Survival Act, 42 Pa.C.S. § 8302, and whether the parents of a stillborn child can have a cause of action under the Wrongful Death Act, 42 Pa.C.S. § 8301. The battle lines on this issue have been fairly clearly drawn in prior

[ 509 Pa. Page 209]

    cases and the arsenals of reasoning amassed on each side have for the most part remained unchanged. I am in agreement with the result and therefore join the majority opinion. Because of the importance of the question, however, I am not satisfied to overrule the previous decisions of this Court, Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981) being of especially recent vintage, without a complete analysis of the competing considerations. The difference is, perhaps, only one of emphasis, but I am convinced that our responsibility to explain the reasons underlying our decisions is not met by simple reference to the holdings of other courts or to previously filed dissenting opinions. Were the trend reflecting a substantial "change in attitude" among our sister states sufficient reason to recognize these actions, Scott v. Kopp would have been decided differently; as the dissenting opinion of Justice Larsen indicated, there were 27 jurisdictions allowing such actions when that case was decided. In the intervening four years, Missouri, North Dakota, Idaho, Iowa, Ohio, and Arizona have been added to the list, but it can hardly be said that the trend is now overwhelmingly different than when we decided Scott. Neither does the lead opinion offer any justification for the present acceptance of the same reasoning which was advanced by Justice Larsen in Scott but did not command a majority. Nor does it address the significance, if any, of the language differences between Pennsylvania's Wrongful Death Act and the statutes in other jurisdictions, or the distinction between the Wrongful Death and Survival Acts. Consistency and stability, which are among the fundamental interests of our jurisprudence, require a more thorough explanation if substantial change is to withstand rigorous scrutiny. I therefore write separately to detail my reasons for joining in overruling Scott v. Kopp; Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964).

According to the record, the Appellant Regina Amadio was delivered of a full term baby girl, Jennifer, on October 15, 1979. The birth ...


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