TONGUE, J.
TMs is an action for wrongful death brought on behalf of the estate of a baby that died in defendant’s hospital shortly before its birth. Plaintiff appeals from the granting of a directed verdict in favor of defendant Kaiser Foundation Hospital.①
The facts, insofar as they relate to the issues raised by tMs appeal, are substantially as follows, giving plaintiff the benefit of all favorable evidence, as required in such a case.②
.Michealeen Libbee was admitted to the hospital on August 11,1969,'at about 2:30 p.m. for the delivery of her baby. At that time she was sis weeks and five days overdue. At about 7:30 p.m. Dr. George'saw her, ruptured her membrane, and noted that the amniotic [260] finid was “quite stained,” i.e., that there was meconium in the amniotie fluid.③
Mrs. Libbee was then monitored, including a check of the fetal heartbeat, approximately every half-hour by one of defendant’s registered nurses until 11 p.m., when that nurse went off duty and her duties were assumed by another registered nurse employed by the hospital. During that period Mrs. Libbee made very little progress in her labor.
The second nurse testified that she continued to monitor Mrs. Libbee every half-hour and that entries were made on the hospital records to that effect. Mrs. Libbee testified, however, that after the nurse checked her at about 12:30 a.m., she felt a different kind of a pain at about 1 a.m., and rang the bell to summon the nurse. She also testified that the nurse then “stuck her head in” and said that she would be back “in a moment,” but did not return until about 1:30 a.m.
At that time the nurse again monitored Mrs. Libbee and found that there were no fetal heart tones, as found on all previous occasions. A doctor was then summoned and a Caesarean operation was performed, but the ehild was dead upon delivery.
Medical testimony was offered by plaintiff that under these circumstances, including the discovery of meconium in the amniotie fluid, the fetal heartbeat should have been monitored every five minutes. In addition, the nurse herself admitted that it was “common practice” in defendant’s hospital for an LPN [261] (Licensed Practical Nurse) to monitor the heart tones of the patient “quite frequently.” She also admitted that she was aware of the fact that the amniotic fluid was “stained” and that this “could be a problem for the baby.”
In addition to contending that this evidence was insufficient to go to the jury on the issue of its negligence, the hospital raises the threshhold question whether an action for wrongful death of a stillborn baby can be maintained in Oregon — a question never before decided by this court.
1. An action for wrongful death of a stillborn child can be maintained in Oregon.
In Mallison v. Pomeroy, 205 Or 690, 697, 291 P2d 225 (1955), we held that a “viable” unborn child is a “person” for the purposes of Article I, § 10, of the Constitution of Oregon, which guarantees “every man * * * [a] remedy by due course of law for injury done [to] him in his person * * *.”④ This court held that it had a cause of action for personal injuries sustained by it while it was in its mother’s womb, causing cerebral palsy.
In so holding this court chose to follow what we referred to as “the best reasoned modern judicial opinions,” despite substantial authority to the contrary.
Among the decisions cited with approval in Mallison (at 692) is Verkennes v. Corniea, 229 Minn 365, 38 NW2d 838 (1949). In that case, as in this, the action was for the wrongful death of an unborn child. In one [262] of the' first and leading cases sustaining the right to recovery in such an action the court said (at 38 NW2d 840) , 'in quoting from another case:
“ * * The wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize separate existence for the purpose of redressing the tort.’ ”
The court in VerJcennes then went on to hold (at 841) :
“* * * It seems boo plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited.”
Since VerJcennes the courts of 19 jurisdictions now expressly permit an action for the death of a viable unborn child.⑤ Twelve jurisdictions expressly prohibit such actions.⑥
[263] The principal reasons stated for prohibiting such actions are as follows:
(1) Precedent. This reason no longer applies because the weight of authority now favors recovery.
(2) An unborn child has no judicial existence apart from its mother. It is now recognized that there is no medical or scientific basis for such a proposition and it was expressly rejected by this court in Mallison, at least with respect to a viable unborn child. It has been predicted that “the requirement of viability will be scrapped,”⑦ but that question need not be decided in this case, which involved a clearly “viable” child.
[264] (3) Permitting such actions would open the door to fraudulent claims and proof of a causal connection and of pecuniary doomages would be speculative.
The speculative nature of the proof of pecuniary-damages ¡on the death of an unborn child is one of the reasons why some courts deny recovery in such cases. In Oregon, however, the Wrongful Death Act has now been amended so as to no longer limit damages in actions under the statute to pecuniary loss. Thus, effective January 1, 1974, ORS 30.020 now includes loss of society and companionship to the parents of a child as an item of damages. (Oregon Laws 1973, ch 718.) The measure of damages in this case may or may not be limited to those provided for under ORS 30.020 prior to that amendment. This, however, is no reason to hold that the unborn decedent in this case was not a “person” for the purpose of that statute.
To the same effect, courts of states which permit recovery in such cases have applied the usual rule to the effect that once a substantive right of a person is recognized, that right cannot then be denied because of possible difficulties in proof⑧ and that if the common law has vitality it should be elastic enough to provide safeguards against fraudulent and speculative claims and to adapt itself to the facts of life in our modem society.⑨
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TONGUE, J.
TMs is an action for wrongful death brought on behalf of the estate of a baby that died in defendant’s hospital shortly before its birth. Plaintiff appeals from the granting of a directed verdict in favor of defendant Kaiser Foundation Hospital.①
The facts, insofar as they relate to the issues raised by tMs appeal, are substantially as follows, giving plaintiff the benefit of all favorable evidence, as required in such a case.②
.Michealeen Libbee was admitted to the hospital on August 11,1969,'at about 2:30 p.m. for the delivery of her baby. At that time she was sis weeks and five days overdue. At about 7:30 p.m. Dr. George'saw her, ruptured her membrane, and noted that the amniotic [260] finid was “quite stained,” i.e., that there was meconium in the amniotie fluid.③
Mrs. Libbee was then monitored, including a check of the fetal heartbeat, approximately every half-hour by one of defendant’s registered nurses until 11 p.m., when that nurse went off duty and her duties were assumed by another registered nurse employed by the hospital. During that period Mrs. Libbee made very little progress in her labor.
The second nurse testified that she continued to monitor Mrs. Libbee every half-hour and that entries were made on the hospital records to that effect. Mrs. Libbee testified, however, that after the nurse checked her at about 12:30 a.m., she felt a different kind of a pain at about 1 a.m., and rang the bell to summon the nurse. She also testified that the nurse then “stuck her head in” and said that she would be back “in a moment,” but did not return until about 1:30 a.m.
At that time the nurse again monitored Mrs. Libbee and found that there were no fetal heart tones, as found on all previous occasions. A doctor was then summoned and a Caesarean operation was performed, but the ehild was dead upon delivery.
Medical testimony was offered by plaintiff that under these circumstances, including the discovery of meconium in the amniotie fluid, the fetal heartbeat should have been monitored every five minutes. In addition, the nurse herself admitted that it was “common practice” in defendant’s hospital for an LPN [261] (Licensed Practical Nurse) to monitor the heart tones of the patient “quite frequently.” She also admitted that she was aware of the fact that the amniotic fluid was “stained” and that this “could be a problem for the baby.”
In addition to contending that this evidence was insufficient to go to the jury on the issue of its negligence, the hospital raises the threshhold question whether an action for wrongful death of a stillborn baby can be maintained in Oregon — a question never before decided by this court.
1. An action for wrongful death of a stillborn child can be maintained in Oregon.
In Mallison v. Pomeroy, 205 Or 690, 697, 291 P2d 225 (1955), we held that a “viable” unborn child is a “person” for the purposes of Article I, § 10, of the Constitution of Oregon, which guarantees “every man * * * [a] remedy by due course of law for injury done [to] him in his person * * *.”④ This court held that it had a cause of action for personal injuries sustained by it while it was in its mother’s womb, causing cerebral palsy.
In so holding this court chose to follow what we referred to as “the best reasoned modern judicial opinions,” despite substantial authority to the contrary.
Among the decisions cited with approval in Mallison (at 692) is Verkennes v. Corniea, 229 Minn 365, 38 NW2d 838 (1949). In that case, as in this, the action was for the wrongful death of an unborn child. In one [262] of the' first and leading cases sustaining the right to recovery in such an action the court said (at 38 NW2d 840) , 'in quoting from another case:
“ * * The wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize separate existence for the purpose of redressing the tort.’ ”
The court in VerJcennes then went on to hold (at 841) :
“* * * It seems boo plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited.”
Since VerJcennes the courts of 19 jurisdictions now expressly permit an action for the death of a viable unborn child.⑤ Twelve jurisdictions expressly prohibit such actions.⑥
[263] The principal reasons stated for prohibiting such actions are as follows:
(1) Precedent. This reason no longer applies because the weight of authority now favors recovery.
(2) An unborn child has no judicial existence apart from its mother. It is now recognized that there is no medical or scientific basis for such a proposition and it was expressly rejected by this court in Mallison, at least with respect to a viable unborn child. It has been predicted that “the requirement of viability will be scrapped,”⑦ but that question need not be decided in this case, which involved a clearly “viable” child.
[264] (3) Permitting such actions would open the door to fraudulent claims and proof of a causal connection and of pecuniary doomages would be speculative.
The speculative nature of the proof of pecuniary-damages ¡on the death of an unborn child is one of the reasons why some courts deny recovery in such cases. In Oregon, however, the Wrongful Death Act has now been amended so as to no longer limit damages in actions under the statute to pecuniary loss. Thus, effective January 1, 1974, ORS 30.020 now includes loss of society and companionship to the parents of a child as an item of damages. (Oregon Laws 1973, ch 718.) The measure of damages in this case may or may not be limited to those provided for under ORS 30.020 prior to that amendment. This, however, is no reason to hold that the unborn decedent in this case was not a “person” for the purpose of that statute.
To the same effect, courts of states which permit recovery in such cases have applied the usual rule to the effect that once a substantive right of a person is recognized, that right cannot then be denied because of possible difficulties in proof⑧ and that if the common law has vitality it should be elastic enough to provide safeguards against fraudulent and speculative claims and to adapt itself to the facts of life in our modem society.⑨
Even under the previous provisions of the Oregon Wrongful Death Act this court has recognized that the ultimate issue in an action for wrongful death [265] is “the value of the life lost,”⑩ and that the speculative nature of proof of pecuniary damage in -wrongful death actions is no reason to deny the right of a plaintiff to have such an action submitted to the jury, much less to deny the existence of the substantive right to bring such an action.⑪ Furthermore, the purpose of a Wrongful Death Act is to provide such a remedy whenever, if death had not ensued, there would have been an action for damages.⑫
Suppose, as did the court in Stidam v. Ashmore, 109 Ohio App 431, 167 NE2d 106, 108 (1959), the following hypothetical ease: A mother bears twins. One is bom alive, but immediately dies because of negligent conduct of a hospital. The other dies immediately before birth as the result of the same negligent conduct. Or suppose, as a second hypothetical case, two different mothers, each with a child about to be delivered, one of which is born alive and then dies, while the other dies immediately before birth, each as the result of similar negligent conduct by the hospital. As the court said in Stidam (at 167 NE2d 108): “* * * [I]t would be absurd if no recovery could be had for such injuries, unless those injuries were not so severe as to cause death before birth.” To the same effect, see Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis 2d 14, 148 NW2d 107, 110 (1966).
[266] Under the rule of Mallison, we would be required to hold that an action could be brought for the wrongful death of the first child in each hypothetical case on the ground that it was a “person” while yet unborn and at the time of the injury causing its death, despite any problems of proof of causation and pecuniary damage. We find no logical basis for distinction under which we could properly hold that no action can be brought for the wrongful death of the second child in each case despite the fact that it was also a “person” at the time of the injury causing its death.
While we recognize that some courts have denied recovery in such cases, after studying this problem we believe that the more persuasive reasons are those adopted by the majority of courts which now recognize a right of action in such cases. We also believe that in view of our previous holding in Mallison to the effect that a viable unborn child is a “person” for the purpose of being entitled to remedy by due course of law for injuries to his person, we cannot properly hold, without overruling Mallison, that there can be no remedy when such an injury results in death immediately before birth, as in this case.⑬
[267] We also recognize that the Supreme Court of the United States, in Roe v. Wade, 410 US 113, 93 S Ct 705, 35 L ed 2d 147 (1973), has held (at 410 US 158) that a fetus is not a “person” for the purpose of the Fourteenth Amendment of the Constitution of the United States, and that states may not enact statutes which prohibit abortions during the first “trimester.”⑭ The Court recognized, however, (at 410 US 163-64), that after a fetus has become “viable” a state may prohibit abortions altogether, except those necessary to preserve the life or health of the mother and (at 410 US 163) that “State regulation protective of fetal life after viability * * * has both logical and biological justifications.” It follows that the decision in Roe is entirely consistent with our previous decision in Mallison to the effect that a viable child is a “person” entitled to the protection of Article I, § 10, of the Constitution of Oregon.
For all of these reasons, we hold that the trial court was not entitled to direct a verdict in favor of defendants in this case on the ground that plaintiff had no right to bring an action for the wrongful death of the child who was the decedent in this case.
[268]*2682. Plaintiff was entitled to submit to the jury the issue whether defendant’s nurse was negligent in failing to properly monitor the child’s heartbeat while its mother was in labor prior to delivery.
In addition to other allegations of negligence, plaintiff’s complaint alleged that defendant Kaiser Foundation Hospital Ayas negligent in that it “failed to properly and timely monitor * * * the child’s heartbeat Ayhile decedent’s mother Ayas in labor prior to delivery.”
Defendants contend that there Ayas no testimony to establish that defendant’s nurses (as distinct from the doctors) “should have recognized that additional care Ayas needed” and that this could only be established by expert testimony unless the doctors had given such instructions to defendant’s nurses.
Plaintiff responds by contending, in effect, that this Ayas not a matter requiring expert testimony and that, in any event, there Ayas evidence from Ayhich the jury could properly have found that defendant’s nurses Ayere aAyare of the fact that there Ayas a “problem” in this case and recognized that monitoring of the child’s heartbeat Ayas needed at least every half-hour. •
There Ayas evidence that under the circumstances presented by Mrs. Libbee’s pregnancy it Ayould have been customary medical practice to monitor the fetal heartbeat at least every half-hour. Some Ayitnesses testified that under these circumstances the fetal heartbeat should have been monitored every five minutes.
In addition, the attending nurse herself admitted that it Ayas “common practice in Kaiser Hospital for the LPN in the obstetrics Ayard” to monitor the heart [269] tones of the patient “quite frequently.” She also admitted that she was aware of the fact that the amniotic fluid was “stained” when the membrane was ruptured and that this could “be a problem for the baby.”
There was also evidence that Mrs. Libbee’s medical chart showed that monitoring had taken place at least every half-hour. This, of course, was contrary to the testimony of Mrs. Libbee that no one monitored the heartbeat for a period of one hour, from 12:30 to 1:30 a.m., despite the fact that at 1 a.m. she had “a different kind of a pain that would not subside” and rang a bell to summon a nurse, but that no nurse appeared until 1:30 a.m., at which time this unborn child was dead.
In our opinion, the jury could have reasonably inferred from this evidence that the purpose of the nurse in mailing the entry in Mrs. Libbee’s medical chart showing that the fetal heartbeat had been monitored every half-hour during that interval, when such was not the fact, was to make it appear that the fetal heartbeat had in fact been monitored at least every half-hour, as had been done at all times prior to 1 a.m. The jury could also have inferred from these facts that the nurse would not have made such a false entry unless either (1) she knew very well that it was the customary, if not the required, nursing practice to monitor at least every half-hour under these circumstances, or (2) unless the doctor had given instructions to do so.
We hold that these were reasonable inferences which the jury could properly have drawn from the evidence in this case and that it was error for the trial court to refuse to submit the evidence to the jury so that it could have decided whether or not to do so.
[270] We also hold that there was sufficient evidence to go to the jury on the issue of causation, despite defendants’ contention to the contrary.
For all of these reasons, it was error for the trial court to grant the motion for a directed verdict in favor of defendant hospital.
Reversed and remanded.
See also Speiser, Recovery for Wrongful Death 355-56, § 431 (1966); Annot., 15 ALR3d 992 (1967); Wrongful Death and the Stillborn Fetus — A Current Analysis, 7 Houst L Rev 449 (1970). See generally, Prosser, Law of Torts (4th ed 1971) 335-38, § 55.
While these changes in Oregon statutes are of interest, we do not consider them to be controlling. Moreover, the Oregon legislature has made no corresponding change in its use of the word “person” for the purpose of the Wrongful Death Act (ORS 30.020), although it made other substantial changes in that statute in both 196'7 (Oregon Laws 1967, ch 544) and in 1973 (Oregon Laws 1973, ch/718).