Hudak v. Georgy

634 A.2d 600, 535 Pa. 152, 1993 Pa. LEXIS 277
CourtSupreme Court of Pennsylvania
DecidedNovember 16, 1993
Docket68 and 69 Middle District Appeal Docket 1990
StatusPublished
Cited by20 cases

This text of 634 A.2d 600 (Hudak v. Georgy) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hudak v. Georgy, 634 A.2d 600, 535 Pa. 152, 1993 Pa. LEXIS 277 (Pa. 1993).

Opinions

OPINION

MONTEMURO, Justice.

The issue raised on this appeal is whether an action for wrongful death and survival can be maintained on behalf of triplets that were born alive, but were unable to sustain life because of their premature birth.

The facts of this case are as follows: Mrs. Hudak became pregnant in November of 1982, and was under the care of Drs. Farouk M. Georgy, Leonard Collins; and Lyon, Cooper, Hippie, Georgy, and Collins, P.C. (“Doctors”). The Doctors specialize in the area of obstetrics and gynecology, and had been treating Mrs. Hudak for infertility. In January of 1983, an ultrasound revealed that Mrs. Hudak was carrying triplets.

On April 10, 1983, when Mrs. Hudak was approximately 24 weeks pregnant, she went into labor. After experiencing difficulty in contacting her physicians, Mrs. Hudak was eventually advised to go to the Williamsport Hospital. Dr. Collins was present at the hospital, and administered Rotodrine in order to stop the contractions. After Mrs. Hudak’s contractions ceased, she was transferred to Geisinger Medical Center. The following day the triplets were delivered by caesarian section. All of the triplets were bom alive. However, two of the three died in the delivery room twenty minutes after birth, and the third child died approximately ten hours later. The parties stipulated that at the time of delivery, the triplets were [154]*154incapable of sustained life outside the womb, and therefore, were not viable.

The Hudaks brought an action under the wrongful death1 and survival acts2 on behalf of the triplets. The trial court, upon the Doctors’ motion, dismissed the wrongful death and survival claims concluding that an action cannot be maintained on behalf of a non-viable fetus. After the trial court had entered an order certifying the case for immediate appellate review, the court issued an opinion in support of reversing its prior order.

On appeal, the Superior Court determined that our prior precedent was not dispositive on the issue, and affirmed the dismissal. Specifically, the Superior Court held:

In the absence of any expression of intent from the legislature or any analysis by our Supreme Court, we cannot decide that fetuses born prior to attaining viability should now be accorded the same rights that children who have attained viability have been accorded under the Wrongful Death and Survival Acts.

Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989). We granted allocatur to clarify this important area of the law, and now reverse.

[155]*155An action for wrongful death and survival may be maintained on behalf of an “individual”, a term which is defined to mean a “natural person”. 1 Pa.C.S.A. § 1991. The survival act provides that all causes of action shall survive the death of the plaintiff. Thus, the issue is whether a child that is born alive is a natural person for purposes of our wrongful death and survival acts even if the infant is considered non-viable at the time of its birth. The Hudaks assert that the Superior Court erred by making viability a prerequisite to liability where there was live birth. We agree.

In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), this court held that a wrongful death action can be brought on behalf of a fully developed stillborn fetus. In so doing, we overruled our previous line of cases which uniformly held that an independent life in being, one which had survived birth, was a predicate to a wrongful death and survival action. See Scott v. Kopp, 494 Pa. 487, 481 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). In Amadio, we justified our departure from precedent by demonstrating that the rationale supporting those decisions was no longer valid.

First, the Amadio Court noted that a majority of jurisdictions now recognize a cause of action on behalf of the “estates of stillborn children for fatal injuries they received while viable children en ventre sa mere”. 509 Pa. at 203, 501 A.2d at 1086-87. Second, we recognized that our wrongful death and survival statutes are remedial in nature and should be liberally construed. Third, we held that difficulties in proving either causation or damages should not operate as a complete bar to recovery. Fourth, we demonstrated that allowing wrongful death actions on behalf of a stillborn fetus would not permit a windfall of double recovery to the parents. Finally, we explained a stillborn’s inability to take by distribution is irrelevant when determining how wealth is accumulated.

In Amadio, we did not eliminate a cause of action for wrongful death brought on behalf of an infant that only survives a moment. Indeed we stated, “[tjoday’s holding [156]*156merely 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.” Amadio v. Levin, 509 Pa. 199, 207, 501 A.2d 1085, 1089 (1985) (emphasis added). The Superior Court, by couching the issue in terms of whether infants born alive “should now be accorded the same rights [as] children who have attained viability,” has turned our decision in Amadio on its head. The issue was not whether the viability standard should supplant live birth as the only relevant measure of when a fetus becomes a person, but whether a viable stillborn fetus should be treated the same as a child born alive. Therefore, Amadio did not affect the rule permitting a wrongful death action for a child that is born alive.

Moreover, interjecting the concept of viability into a situation where a child born alive confuses the issue. Viability describes the capacity of the unborn to survive outside the womb, and is not relevant when an infant survives birth.3 Not surprisingly, no jurisdiction accepts the Doctors’ assertion that a child must be viable at the time of birth in order to maintain an action in wrongful death. Indeed, the Doctors’ argument that viability rather than live birth is the dispositive consideration in determining the existence of an action for wrongful death has been rejected. See, Group Health Association, Inc. v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983) (concept of viability is inapplicable in a suit for wrongful death of a 19-20 week-old fetus who survived birth) citing Torrigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967) (permitting wrongful death action for injuries which caused the premature birth and death of fetus who survived only two and one-half hours); Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973) (permitting action for wrongful death where child died [157]*15750 minutes after birth); see also, Brown v. Green, 767 F.Supp. 273 (D.D.C.1991) (previable fetus born alive but dying soon after birth may recover for injuries caused by negligent care).4

The Doctors’ argument that the immaturity of the Hudak triplets operates to bar recovery is also inconsistent with the Second Restatement of Torts. Section 869 provides:

§ 869 Harm to Unborn Child

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mori v. Allegheny County
51 F. Supp. 3d 558 (W.D. Pennsylvania, 2014)
Gonzales v. Mascarenas
190 P.3d 826 (Colorado Court of Appeals, 2008)
Pino v. United States
2008 OK 26 (Supreme Court of Oklahoma, 2008)
Crosby v. Glasscock Trucking Co., Inc.
532 S.E.2d 856 (Supreme Court of South Carolina, 2000)
Nealis v. Baird
1999 OK 98 (Supreme Court of Oklahoma, 1999)
Wynkoop v. Luke
43 Pa. D. & C.4th 16 (Armstrong County Court of Common Pleas, 1999)
Ehrman v. Mid-American Waste Systems of Pa. Inc.
39 Pa. D. & C.4th 235 (Alleghany County Court of Common Pleas, 1998)
Miller v. Kirk
905 P.2d 194 (New Mexico Supreme Court, 1995)
Jackson v. Tastykake, Inc.
648 A.2d 1214 (Superior Court of Pennsylvania, 1994)
Jackson v. Tastykake, Inc.
643 A.2d 61 (Supreme Court of Pennsylvania, 1994)
Ladov v. Skrentner
636 A.2d 176 (Superior Court of Pennsylvania, 1994)
Coveleski v. Bubnis
634 A.2d 608 (Supreme Court of Pennsylvania, 1993)
Hudak v. Georgy
634 A.2d 600 (Supreme Court of Pennsylvania, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
634 A.2d 600, 535 Pa. 152, 1993 Pa. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudak-v-georgy-pa-1993.