Strzelczyk Ex Rel. Strzelczyk v. Jett

870 P.2d 730, 264 Mont. 153, 51 State Rptr. 206, 1994 Mont. LEXIS 55
CourtMontana Supreme Court
DecidedMarch 17, 1994
Docket93-173
StatusPublished
Cited by27 cases

This text of 870 P.2d 730 (Strzelczyk Ex Rel. Strzelczyk v. Jett) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strzelczyk Ex Rel. Strzelczyk v. Jett, 870 P.2d 730, 264 Mont. 153, 51 State Rptr. 206, 1994 Mont. LEXIS 55 (Mo. 1994).

Opinions

JUSTICE WEBER

delivered the Opinion of the Court.

This case is before the Court on Certified Question from the United States District Court, District of Montana, Great Falls Division. This Court heard oral arguments on February 16,1994 concerning the following question:

Does the State of Montana recognize a claim of wrongful death for a stillborn fetus?

Under the facts of this case, the answer is yes.

The facts of this case are not in dispute. At the time of the delivery, Alexa Strzelczyk (Alexa) and Dr. Stanley Jett (Jett), were both residents of the State of Montana residing in the Chinook area. Dr. Jett was licensed to practice medicine in this state. On or about June 12, 1989, Alexa visited Dr. Jett for the first time and thereafter, became his patient.

Medical records show that Alexa’s expected date of delivery was January 7, 1990. Alexa was diagnosed as a diabetic during her pregnancy, but medical records indicate that she controlled her diabetes. The fetus maintained a normal heartbeat throughout the pregnancy and as late as January 15,1990, the heartbeat was normal at 140. On January 17,1990, an ultrasound was performed on Alexa and it was determined at that time that the fetus had died. Dr. Frank Miller was called in and delivered the stillborn fetus on January 18, 1990, at Northern Montana Hospital, Havre, Montana.

Alexa filed an application with the Medical Malpractice Panel pursuant to § 27-6-701, MCA, against Dr. Jett on December 24,1991. A decision was rendered on July 14, 1992, determining that a cause of action existed. Subsequently, on August 11, 1992, Alexa filed a complaint alleging malpractice against Dr. Jett. Dr. Jett removed the [155]*155action to federal district court on January 6, 1993, because of diversity. Both Dr. Jett and Alexa now live in different states.

United States Magistrate Robert M. Hotter, heard oral argument on the case and recommended that the matter be certified to the Montana Supreme Court because of this Court’s holding in Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916. Kuhnke held that the then existing wrongful death statutes did not support a claim for wrongful death of a stillborn fetus. In view of the legislature’s subsequent revisions of the wrongful death statutes, and Judge Holter’s recommendation, Federal Judge Paul G. Hatfield certified the question to this Court. Pursuant to Rule 44 of the Montana Rules of Appellate Procedure, this Court accepted jurisdiction by order dated April 15, 1993.

Does the State of Montana recognize a claim of wrongful death for a stillborn fetus?

Dr. Jett filed a motion to strike that part of the amended complaint which refers to the wrongful death action, arguing that the Montana Court in Kuhnke would not recognize such a claim for a stillborn fetus. On appeal, plaintiff argues that the Kuhnke case was decided before the legislature modified the applicable wrongful death statute. Following the Kuhnke decision, the legislature changed the statute and according to plaintiff, a plain reading of that statute in conjunction with other applicable statutes indicates that a wrongful death claim for a stillborn fetus is appropriate.

Dr. Jett contends that the legislature changed the statute only to prohibit double recovery on claims. Further, Dr. Jett argues that the Kuhnke case is still applicable because this Court stated therein that any future recovery by a fetus must await a statutory change by the legislature. Dr. Jett’s assertion is that although the legislature changed the wording of the statute it did not provide wording that would allow recovery for a wrongful death action.

While it is true that Kuhnke held that no cause of action for wrongful death will lie for a stillborn fetus, it did so based upon the 1985 language in the wrongful death statute. We confine ourselves to a comparative consideration of two versions of the applicable statutes, the version of statutes reviewed by the Kuhnke Court and the 1987 changes to those statutes which govern the case before us.

At the time of the Kuhnke decision, Montana’s wrongful death statute stated:

Section 27-1-512, MCA (1985). Action by parent or guardian for injury to or death of child or ward. Either parent may [156]*156maintain an action for the injury or death of a minor child and a guardian for injury or death of a ward when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death or, if such person be employed by another person who is responsible for his conduct, also against such other person. (Emphasis added.)

In 1987, this section was changed to read:

Section 27-1-512, MCA (1987-1993). Action by parent or guardian for injury to child or ward. Either parent may maintain an action for the injury to a minor child and a guardian for injury to a ward when such injury is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or, if such person be employed by another person who is responsible for his conduct, also against such other person. (Emphasis added.)

We note that “or death” has been excised from this statute. The attendant statute previously read:

Section 27-1-513, MCA (1985). Action for wrongful death of adult. When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person. (Emphasis added.)

In 1987, this section was also changed to read:

Section 27-1-513, MCA (1987-1993). Action for wrongful death. When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent’s estate may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person. (Emphasis added.)

Kuhnke interpreted the term “minor child” for purposes of a wrongful death claim. We determined that a fetus was not a minor child and could not, based upon this lack of connection, maintain a cause of action for wrongful death. In 1987, § 27-1-512, MCA, dropped all language indicating an action for “death” of a minor child; only injury was still included. Also, the 1987 changes to § 27-1-513, MCA, dropped all distinction between minor and adult and only specified “one person.” Therefore, what we must interpret is “person” not “minor child.”

[157]*157Considering the language in Kuhnke indicating that we must wait for the legislature to change the law to permit an action for wrongful death of stillborn fetus, we note that the legislature has changed certain language in the wrongful death statute. It has not placed the words “stillborn fetus” into the statute, but it remains for us now to interpret who is a “person” for purposes of this case. We will not read into statutes something that is not there. State ex rel.

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Bluebook (online)
870 P.2d 730, 264 Mont. 153, 51 State Rptr. 206, 1994 Mont. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strzelczyk-ex-rel-strzelczyk-v-jett-mont-1994.