Milton v. Cary Medical Center , 1988 Me. LEXIS 26 ( 1988 )

WATHEN, Justice,

with whom NICHOLS, and CLIFFORD, JJ., join dissenting.

I respectfully dissent from the Court’s conclusion that an action for prenatal death cannot be maintained under Maine’s wrongful death statute. In its opinion, the Court appropriately recognizes that: (1) wrongful death statutes were adopted to correct an anomaly in the law, (2) thirty-five states have interpreted their statute to allow a wrongful death action on behalf of a fatally injured viable fetus, and (3) only nine states have refused to permit such an action. After announcing those foundational facts, the Court inexplicably declares that it will ignore the rationale adopted in other jurisdictions and confine its analysis to “a reading of our own law to derive its meaning and intent.” Having adopted this strangely restricted method of legal analysis, the Court faithfully proceeds through a grudging process of statutory construction and succeeds in producing an anomaly nearly as flagrant as that which originally prompted the adoption of the statute. I would rule that a claim for the prenatal death of a viable fetus is actionable.

In 1891, when Maine adopted the wrongful death statute, there was a general assumption that birth marked the beginning of life. In the last part of the 19th century, Justice Oliver Wendell Holmes wrote an authoritative opinion in which he declined to recognize a fetus as a person and reasoned that because the mother and fetus were physically inextricable they should be considered one entity. Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884). Justice Holmes’ opinion remained unchallenged until 1946, when the concept of viability was introduced in the context of prenatal injuries caused by an act of malpractice. In Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), the court ruled that a child, viable at the time of injury and later bom alive, could maintain an action for prenatal injuries. With Bonbrest the separate personhood of the fetus was established, and within three years the Minnesota Supreme Court upheld a wrongful death action for fatal prenatal injuries inflicted upon a viable fetus. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). Since 1949, the split of authority noted previously has developed. No useful purpose would be served by a detailed discussion of the divergent opinions in other jurisdictions. It is sufficient to note the point of divergence; namely, is it within the judiciary’s function to interpret the statutory term “person” in a context beyond that anticipated by the original legislative scriveners.

Most of the courts included in the majority view have considered the question as appropriately invoking the exercise of the judicial power of statutory construction. Recognizing that actions are almost universally allowed for prenatal injuries, those courts conclude that it would be irrational to prohibit recovery for a more severe injury causing the death of a fetus. See, e.g. Mone v. Greyhound Lines, Inc., 368 Mass. 354, 360-61, 331 N.E.2d 916, 920 (1975); Presley v. Newport Hospital, 117 R.I. 177, 187, 365 A.2d 748, 753 (1976). Moreover, the recognition of a fetus as a person is thought to be most consistent with current human experience and knowledge concerning fetal development and the ability of the fetus to survive independently of the mother.¹ See, e.g., Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249, 251 (1957). Courts that have undertaken the construction of the term “person” have readily concluded that a viable fetus is included within the meaning of that term. Courts holding the minority view, however, have generally declined to permit the action on the theory that to do so would infringe upon the exclusive prerogative of the legislature to create legal rights and interests. See, e.g., Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 107, 565 P.2d 122, 132 (1977); Hamby v. McDaniel, 559 S.W.2d 774, 776-77 (Tenn.1977). Thus, the issue is primarily a matter of determining the proper bounds of the judicial function rather than a strict question of statutory interpretation.

The wrongful death statute enacted in Maine was modeled after Lord Campbell’s Act enacted by the British Parliament in 1846 and is substantially identical to wrongful death statutes enacted in other American jurisdictions. Considering the state of human knowledge at the end of the 19th century, as evidenced by Justice Holmes’ pronouncement in Dietrich, it is reasonable to conclude that the Maine Legislature did not intend to include a fetus in the definition of person. The only other relevant event in legislative history occurred in 1979, when the statute was incorporated, unchanged, into the Maine Probate Code.² Although there had been substantial litigation and discussion in other jurisdictions in the years between 1891 and 1979, this Court had no occasion for any pronouncement.

The Court divines meaning from a century of legislative silence in the face of judicial opinions in other jurisdictions. I am unable to ascribe meaning to legislative silence. In my judgment, the issue should be resolved by determining whether the Legislature intended that the meaning of the term “person” be left to the normal processes of judicial interpretation or whether the Legislature intended that the meaning remain “fixed” as it existed at the time of the original enactment. See Myrick v. James, 444 A.2d 987, 991 (Me.1982); Anderson v. Neal, 428 A.2d 1189, 1191 (Me.1981). Finding no “explicit legislative direction” that would foreclose our consideration of the meaning of “person,” I conclude that the process of defining the term remains a proper judicial function. Myrick, 442 A.2d at 989. I readily accept the interpretation adopted by the majority of courts who have considered this issue. To do otherwise would be to perpetuate the outmoded notions that gave rise to the need for the statute in the first instance. As Justice Cardozo stated: “Death statutes have their roots in dissatisfaction with the archaisms of the law .... It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.” Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51, 57 S.Ct. 452, 456, 81 L.Ed. 685 (1937). Unless the Court is prepared to bar a claim for prenatal injury, we are now left with the result that prenatal injury is actionable while prenatal death is not. The absurdity of such a result is usually illustrated by the hypothetical of twins suffering simultaneous prenatal injuries, with one dying moments before birth and the other dying moments after birth. Such an extreme case demonstrates the irrationality of the requirement of a live birth. See Stidam v. Ashmore, 109 Ohio App. 431, 434, 167 N.E.2d 106, 108 (1959). See also Comment, Prenatal Injuries — Actions for Wrongful Death — Damages, 18 Me.L.Rev. 105 (1966).

I would vacate the judgment of the Superior Court on the claim for wrongful death.

1 . In this regard, it is interesting to observe that it was Justice Holmes who emphasized the relationship between the development of legal doctrine and human experience. "The life of the law has not been logic; it has been experience.” O.W. Holmes, The Common Law 1 (1881).

2 . The statute was made a part of the Maine Probate Code by P.L.1979, ch. 540, § 1 (effective Jan. 1, 1981). In relevant part, the Code defines "person” as "an individual.” 18-A M.R.S.A. § 1-201(29) (1981). Such a circular definition provides no assistance in the present case.