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Peter T. Kandel, Personal Representative for the Estate of Baby Child Scott v. Terrill White - No. 127, 1994 Term WRONGFUL DEATH -- A cause of action for wrongful death may not be maintained on behalf of a nonviable stillborn fetus.

IN THE COURT OF APPEALS OF MARYLAND No. 127 September Term, 1994 ___________________________________

PETER T. KANDEL, PERSONAL REPRESENTATIVE FOR THE ESTATE OF BABY CHILD SCOTT v. TERRILL WHITE ___________________________________

Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker JJ. ___________________________________ Opinion by Chasanow, J. ___________________________________ Filed: August 24, 1995

We are called upon in this case to determine whether a cause of action may from be the maintained negligent for survival of and wrongful death

resulting

infliction

prenatal

injuries

causing the death of a nonviable stillborn fetus.

For the reasons

discussed below, we hold that a cause of action for wrongful death may not be maintained on behalf of a nonviable fetus who is stillborn.

I. This appeal arises out of a tort action filed in the Circuit Court for Baltimore City by Peter T. Kandel, as Personal

Representative for the Estates of Cheryl Scott and "Baby Child Scott," and Jean Hayes against the Mayor and City Council of Baltimore and Terrill White.1 The plaintiffs in the tort action

sought damages for survival and wrongful death arising out of an automobile accident which resulted in the deaths of Cheryl Scott and Baby Child Scott. On May 2, 1993, Cheryl Scott (Scott) was a passenger in a vehicle being driven by Terrill White (White). White was driving

his vehicle eastbound on Mulberry Street near its intersection with Cathedral Street in Baltimore City. At the same time, an ambulance

owned and operated by the Mayor and City Council of Baltimore was travelling southbound on Cathedral Street near its intersection with Mulberry Street.
1

As both vehicles entered the Mulberry Street

Neither Jean Hayes nor The Mayor and City Council of Baltimore are parties to this appeal.

-2and Cathedral Street intersection, they collided. As a result of At the

this collision, Scott suffered serious bodily injuries.

time of the accident, Scott was approximately eight weeks pregnant with Baby Child Scott. Among the injuries suffered by Scott as a

result of the accident was an incomplete abortion of the fetus. The day following the accident, a dilatation and curettage was performed to terminate Scott's pregnancy. On May 22, 1993, Scott

died due to complications from her injuries. The plaintiffs filed a complaint for survival and wrongful death in the Circuit Court for Baltimore City on behalf of Scott and her unborn fetus, Baby Child Scott. White filed a motion to

dismiss all claims alleged against him for the wrongful death of Baby Child Scott arguing that no cause of action may be maintained on behalf of a nonviable stillborn fetus. granted White's motion to dismiss. Judge Ellen M. Heller

The plaintiffs then filed a

proposed order requesting that final judgment be entered dismissing with prejudice all claims brought on behalf of Baby Child Scott. Judge Clifton J. Gordy, Jr. of the circuit court refused to enter a final judgment dismissing all claims brought on behalf of Baby Child Scott pending final judgment as to all parties in the case. The plaintiffs later forwarded a proposed order to Judge Joseph H. H. Kaplan of the circuit court stating that the case had settled and requesting that the judge sign the proposed Order. Judge Kaplan signed the order entering a final judgment dismissing the action with prejudice. The order was filed with the circuit

-3court on June 30, 1994. That same day, appellant appealed this Prior to the intermediate

case to the Court of Special Appeals.

appellate court's consideration of this case, we issued a writ of certiorari to consider whether a cause of action can be maintained for the death of a nonviable stillborn fetus. We note that the

parties to this appeal do not dispute the fact that Baby Child Scott was a nonviable stillborn fetus.

II. We first addressed the right of recovery for prenatal injuries in Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951). In

Damasiewicz, we held that a child who was injured while en ventre sa mere and born alive with permanent injuries, had a right to recover for its injuries. 197 Md. at 441, 79 A.2d at 561.

Subsequently, in State v. Sherman, 234 Md. 179, 198 A.2d 71 (1964), we considered whether a cause of action could be maintained on behalf of a viable fetus who was stillborn. In Sherman, the mother

of a viable child suffered serious bodily injury as a result of an automobile accident. The child, who was a viable fetus in the

ninth month of development, was delivered stillborn shortly after the accident. We held that a cause of action could be maintained

on behalf of the viable fetus to recover for its prenatal injuries. Sherman, 234 Md. at 185, 198 A.2d at 73. Later, in Group Health Ass'n v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983), we considered whether a cause of action may be

-4maintained on behalf of a nonviable fetus who was born alive. In

that case, Ms. Blumenthal suffered from an incompetent cervix requiring premature surgical expulsion closure of the during fetus. pregnancy When Ms. to prevent the was

Blumenthal

approximately four and one-half months pregnant, she allegedly asked her obstetrician about this surgical procedure and was told that it was unnecessary at that time. She also claimed that she

informed her doctor that she was planning an automobile trip from Maryland to Tennessee and was told that the road trip would not be harmful to her condition. While in Tennessee, Ms. Blumenthal gave

birth to a child who died about two and one-half hours after delivery. gestation The child was approximately nineteen to twenty weeks and was not viable. We held that regardless of

viability, "a cause of action lies for the wrongful death of a child born alive who dies as a result of injuries sustained while en ventre sa mere." (emphasis added). Thus, we have held that a cause of action lies for prenatal injuries to a viable child who is either stillborn or born alive and to a nonviable child who is born alive. In the instant case we Blumenthal, 295 Md. at 119, 453 A.2d at 1207

are asked to consider whether a cause of action lies for prenatal injuries to a nonviable fetus who is stillborn. Although appellant

argues that permitting a cause of action for a nonviable stillborn fetus is simply a logical extension of our previous holdings, we disagree and decline to extend a cause of action to a nonviable

-5stillborn fetus. Appellant argues that when we permitted a cause of action on behalf of a nonviable fetus in Blumenthal, we "erased the

distinction" between viable and nonviable fetuses for purposes of a wrongful death cause of action and thus, there is no

justification for refusing to permit a cause of action for the wrongful death of the nonviable fetus in the instant case simply because the fetus was stillborn. Contrary to appellant's argument,

however, Blumenthal in no way erased the distinction between viable and nonviable fetuses for purposes of permitting a cause of action for the wrongful death of a fetus. In determining whether a cause

of action existed for a child who was born alive before reaching the point of viability, we noted in Blumenthal that "the concept of viability has no role in a case, such as this, where the child is born alive." 295 Md. at 116, 453 A.2d at 1206. Thus, Blumenthal

did not permit a cause of action for prenatal injuries based on the child's viability status but rather permitted a cause of action solely because the child was born alive. As we noted in Blumenthal in rejecting the viability

distinction when a child is born alive: "`To say now that a child will be recognized as alive and capable of inheriting, and later taking possession of property when born alive, but not recognized as alive for the purpose of sustaining injuries for which suit might be brought if they wrongfully cause its death is an incongruous result.'" 295 Md. at 118, 453 A.2d at 1206 (quoting Wolfe v. Isbell, 280

-6So.2d 758, 764 (Ala. 1973)); see also Humes v. Clinton, 792 P.2d 1032, 1036 (Kan. 1990)(noting "that viability -- the ability to live independently of the mother -- is an irrelevant demarcation when a child survives prenatal injuries and is born [alive] with damages suffered within the womb"). In the case of a child born alive, viability is irrelevant because the cause of action is not on behalf of an unborn fetus, but is rather brought on behalf of an independent living person with a separate legal existence who suffered injuries. v. Wallace, 421 A.2d 134, 135 (N.H. 1980). See Wallace

See also Humes, 792

P.2d at 1037 (noting that "viability is an improper condition precedent to recovery when the injured fetus is born alive ... [but] viability is not an illogical condition precedent when a negligently injured fetus is stillborn" because it "has never become an independent living person")(citation omitted); Thibert v. Milka, 646 N.E.2d 1025, 1027 n.7 (Mass. 1995)(noting that in the case of a nonviable fetus "it is proper to distinguish between those that were born alive and those that were not because it is the very fact of a live birth that gives the child an independent existence and therefore a separate cause of action"). Thus,

although a cause of action may be maintained on behalf of a nonviable fetus who is born alive, our cases have consistently held that viability is a condition precedent to maintaining a cause of action on behalf of a stillborn fetus. Appellant also contends that the circuit court based the

-7refusal to permit a cause of action in the instant case, in part, on the erroneous reason that "to recognize ... a cause of action [for the wrongful death of a nonviable stillborn fetus] could give rise to an `inherent conflict' by giving a mother the right to terminate a pregnancy yet holding that an action could be brought on behalf of the same fetus under a wrongful death act." Appellant

argues that no "inherent conflict" would be created by permitting a cause of action for wrongful death on behalf of a nonviable stillborn fetus while at the same time recognizing a woman's choice to terminate her pregnancy during the first trimester. Appellant

argues that because a woman's choice to end her pregnancy during the first trimester is protected under the United States

Constitution, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), a woman choosing to terminate her pregnancy during the first trimester would not be liable for wrongful death of the fetus. On the other hand, appellant argues that no such

right has been created for tortious injuries inflicted by third parties causing the death of a fetus. Thus, appellant contends

that no inherent conflict arises in permitting a cause of action on behalf of a nonviable stillborn fetus even though a woman may terminate her pregnancy during that same stage in the fetus's development. We note that other jurisdictions have recognized this

"inherent conflict" in refusing to extend a cause of action to a nonviable stillborn fetus. For example, in Toth v. Goree, 237

-8N.W.2d 297 (Mich. Ct. App. 1975), the court noted that "[i]f the mother can intentionally terminate the pregnancy at three months, without regard to the rights of the fetus, it becomes increasingly difficult to justify holding a third person liable to the fetus for unknowingly and unintentionally, but negligently, causing the See also

pregnancy to end at that same stage."

237 N.W.2d at 301.

Wallace, 421 A.2d at 137 (noting that "it would be incongruous for a mother to have a federal constitutional right to deliberately destroy a nonviable fetus, and at the same time for a third person to be subject to liability to the fetus for his unintended but merely negligent acts")(citation omitted). We have recognized the

potential for conflict in permitting a cause of action on behalf of a nonviable stillborn fetus but noted that "this `inherent

conflict' could not arise in Maryland" under our decision in Sherman, supra, where we held that a wrongful death action could be maintained on behalf of a stillborn fetus only if the fetus was viable at the time of death. 453 A.2d at 1207 n.8. By refusing to recognize a cause of action in the instant case, we join the majority of jurisdictions which have held that no cause of action for wrongful death may be maintained on behalf of a nonviable stillborn fetus. In a case factually similar to the See Blumenthal, 295 Md. at 119 n.8,

instant case, the Pennsylvania Supreme Court refused to extend a cause of action to an eight-week old nonviable fetus who was aborted as the result of an automobile accident. See Coveleski v.

-9Bubnis, 634 A.2d 608 (Pa. 1993). The court initially remarked that

"[c]urrently, there is no jurisdiction that provides a cause of action for the death of an eight week old fetus that is not born alive, absent express legislative direction." at 609. Coveleski, 634 A.2d

The court continued by noting that "[i]n fact, every other

jurisdiction that has faced this issue has rejected an action for wrongful death for the demise of a fetus prior to viability." Id.

The court recognized that Pennsylvania had already extended the right to maintain a cause of action to a viable fetus who was stillborn and to a child who is born alive regardless of viability. Id. (citing Amadio v. Levin, 501 A.2d 1085 (Pa. 1986)).

Nevertheless, the court refused to place Pennsylvania "by itself" in extending a cause of action for the wrongful death of a Coveleski, 634 A.2d at 609. Supreme Judicial Court of

nonviable fetus who is not born alive. In a more recent case, the

Massachusetts reached the same result and held that no cause of action exists for the wrongful death of a nonviable fetus who is stillborn. See Thibert, supra. In that case, the plaintiff and

his wife, who was sixteen weeks pregnant, were involved in an automobile accident. As a result of the accident, both plaintiff's Plaintiff filed suit The

wife and his unborn child were killed.

seeking damages for the wrongful death of his unborn child.

court initially noted that a cause of action for the wrongful death of a fetus may be maintained "when the child is born alive, regardless of viability, and when the fetus is viable at the time

-10of injury, even if not born alive." Thibert, 646 N.E.2d at 1026.

Those wrongful death causes of action are permitted, the Thibert court explained, because "the decedent had, or was capable of having, an independent life." Id. In the case of a viable fetus,

the court noted, there is a cause of action because the fetus is capable of maintaining a separate existence. 421 A.2d at 136). Id. (citing Wallace,

Similarly, in the case of a child who is born

alive, regardless of viability, there is a cause of action because the injuries were suffered by a live person who maintained a separate independent existence. Thibert, 646 N.E.2d at 1026-27 The court concluded that could not and did not

(quoting Wallace, 421 A.2d at 135). because the stillborn nonviable fetus

maintain a separate and independent existence from its mother, no separate cause of action for its death could be maintained.

Thibert, 646 N.E.2d at 1027. Other jurisdictions have also refused to extend a cause of action for wrongful death on behalf of a nonviable fetus delivered stillborn following an automobile accident. See, e.g., Estate of

Baby Foy v. Morningstar Beach Resort, 635 F. Supp. 741 (D.V.I. 1986); Mace v. Jung, 210 F. Supp. 706 (D. Alaska 1962); Miccolis v. Amica Mut. Ins. Co., 587 A.2d 67 (R.I. 1991); Wallace v. Wallace, supra; Toth v. Goree, supra. Courts have reached the same result

where the death of a nonviable stillborn fetus was caused by medical malpractice. See, e.g., Gentry v. Gilmore, 613 So.2d 1241 See generally Sheldon R.

(Ala. 1993); Humes v. Clinton, supra.

-11Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411, 454-57 (1978 & Supp. July 1994)(citing cases which hold that no cause of action may be maintained on behalf of a nonviable stillborn fetus). One jurisdiction does permit recovery on behalf of a nonviable stillborn fetus.2 In Connor v. Monkem Co., Inc., 898 S.W.2d 89

(Mo. 1995), the Missouri Supreme Court determined that a cause of action may be maintained for the wrongful death of a nonviable stillborn fetus. In reaching its conclusion, the court relied on

a newly enacted Missouri statute which stated that "`[t]he life of each human being begins at conception.'" 91 See Connor, 898 S.W.2d at The court

n.6 (quoting Mo. Rev. Stat.

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