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MICHAEL J. HUDAK v. FAROUK M. GEORGY (12/13/89)

filed: December 13, 1989.

MICHAEL J. HUDAK, ANN H. HUDAK, JOSEPH HUDAK, DECEASED, DAVID HUDAK, DECEASED AND MICHAEL HUDAK, DECEASED, APPELLANTS,
v.
FAROUK M. GEORGY, M.D., AND LYON, COOPER, HIPPLE, GEORGY AND COLLINS, P.C., APPELLEES. MICHAEL J. HUDAK, ANN H. HUDAK, JOSEPH HUDAK, DECEASED, DAVID HUDAK, DECEASED AND MICHAEL HUDAK, DECEASED, APPELLANTS, V. LEONARD COLLINS, M.D., APPELLEE



COUNSEL

Roberta D. Pichini, Philadelphia, for appellants.

Dennis Bonetti, Harrisburg, for appellees.

Cirillo, President Judge, and Beck and Johnson, JJ. Johnson, J., filed a concurring opinion.

Author: Per Curiam

This case presents a single issue never before addressed by a Pennsylvania court. The issue is whether a Wrongful Death and Survival action will lie on behalf of a fetus which, although allegedly born alive, was concededly not viable at the time of birth. We hold that nothing in the law of Pennsylvania suggests that such a cause of action exists and we decline to create it on the ground that to do so would be to overstep the proper boundaries of the judicial function.

Appellants are Ann and Michael Hudak, who brought the instant medical malpractice action both as individuals and in their capacity as co-administrators of the estates of Joseph, David and Michael Hudak, three non-viable fetuses. Appellees are Drs. Georgy and Collins and the medical professional corporation with which they are associated, Lyon, Cooper, Hipple, Georgy & Collins, P.C.

Mrs. Hudak was under the care of appellees for infertility in the early 1980's. In early 1982, Mrs. Hudak became pregnant but shortly thereafter experienced a miscarriage. In late 1982, Mrs. Hudak was again found to be pregnant, this time with triplets. On the evening of April 10, 1983, Mrs. Hudak called defendants' answering service to alert them that she was experiencing cramping. On Dr. Georgy's advice, Mrs. Hudak went to the hospital where Dr. Collins was on duty. Dr. Collins began administering medication to Mrs. Hudak to stop her contractions. The treatment succeeded and Mrs. Hudak was transferred to another hospital where her treatment was administered by doctors other than defendants. The next day, however, Mrs. Hudak's contractions recommenced. The triplet fetuses were delivered by caesarean section late that afternoon. Two of the fetuses were allegedly born alive, but died within minutes of birth. The third, also allegedly born alive, was placed on a respirator but died in the early morning hours of the next day.

Appellants allege that defendants were negligent in failing properly to treat Mrs. Hudak to stop her premature labor on the night of April 10th. They basically allege that defendants unduly delayed in treating Mrs. Hudak and that this delay resulted in the deaths of the fetuses.

In addition to the wrongful death and survival actions brought on behalf of the three fetuses, appellants also brought actions for negligence on their own behalf, alleging physical injuries to Mrs. Hudak and emotional distress to both Mr. and Mrs. Hudak as a result of the loss of the three fetuses. These actions are not at issue here.

Appellees sought to have the wrongful death and survival actions dismissed on the ground that Pennsylvania law does not recognize a cause of action for wrongful death and survival on behalf of a non-viable fetus. The parties stipulated on the record in the court below that the three fetuses involved herein were non-viable at the time of birth and that non-viable was to be understood to mean incapable of living outside the womb because of immaturity.

On February 9, 1988, the trial court issued an order granting defendant's motion to dismiss and entering judgment in their favor. Appellants took this timely appeal.

Determination of the issue presented depends upon interpretation of the Wrongful Death and Survival Acts, pursuant to which appellants brought the instant action. Nothing in the express language of either Act addresses this issue. The Wrongful Death Act simply provides that a cause of action exists "for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime." 42 Pa.Cons.Stat.Ann. § 8301 (1982). Reference to the Statutory Construction Act reveals that the word "individual", for whose death recovery is allowed, is defined to mean a "natural person". 1 Pa.Cons.Stat.Ann. § 1991 (1989). However, the phrase "natural person" is not defined. The Survival Act provides, in pertinent part, only that all causes of action shall survive the death of the plaintiff. Id. 42 Pa.Cons.Stat.Ann. § 8302.

Thus, the face of the statutes tells us nothing as to whether a non-viable fetus should be considered an individual on whose behalf a wrongful death action may be brought or whether a non-viable fetus is a plaintiff who had a cause of action which survives when the pregnancy terminates. Moreover, as the Supreme Court has indicated, ". . . the legislative history [of the Wrongful Death Act] . . . reveals an absence of any indication regarding the proper resolution . . . ." of issues like the one presented by this case. Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) (emphasis supplied).

In this vacuum of express statutory guidance or legislative history, we must look to prior judicial interpretations of the Acts to ascertain whether they are instructive. This search for authority is equally unfruitful. As the discussion that follows illustrates, there is no pronouncement of Pennsylvania law directly on the issue presented and those cases ...


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