Smith v. Borello

WILNER, Judge. We respond in this Opinion to a question certified to us by the United States Court of Appeals for the Fourth Circuit. In January, 2000, Stacey Smith and Diana Borello were involved in an automobile accident in Baltimore City. Smith was 19 weeks pregnant at the time, and, as a result of the accident, suffered a miscarriage and lost the baby.

She sued Borello in the Circuit Court for Baltimore City for negligence, but Ms. Borello, a New Jersey resident, removed the case to the U.S. District Court for the District of Maryland where, in due course, Ms. Smith and Frank Holliday, the alleged father of the unborn child, filed an amended complaint. In Count I of the amended complaint, Smith repeated her claim of negligence on the part of Ms. Borello and contended, in somewhat redundant paragraphs, that, as a result of that negligence she sustained serious bodily injuries and the loss of her unborn child and that she “suffered pecuniary loss, mental ²³¹ anguish, severe emotional distress, and emotional pain and suffering.” In Count II, Holliday averred that, as a result of Borello’s negligence, he suffered “mental anguish, loss of society, companionship, comfort, protection, attention, care, advice, counsel, filial care, mental anguish, and emotional pain and suffering, among other things due to the death of his unborn child.” The District Court treated all of Count II and part of the claim made by Smith in Count I pertaining to the loss of the child as wrongful death actions which, because the fetus was neither viable nor bom alive, the court held were barred under this Court’s holding in Kandel v. White, 339 Md. 432 , 663 A.2d 1264 (1995). 1 On that premise, it entered summary judgment for Borello on Count II and, through a partial summary judgment, evidentiary rulings, and jury instructions, precluded Smith from recovering under Count I any damages for grief and emotional distress arising from the loss of the child. There were several such rulings regarding Smith’s action. At the commencement of trial, the court made clear that, although Smith could properly claim medical expenses incurred in the delivery of the stillborn fetus and damages for the pain and suffering resulting from the injuries to her, she was not entitled to any recovery for emotional pain and grief suffered by her as a result of the loss of the fetus.

It later precluded her obstetrician from testifying about Smith’s grief and depression from the loss of the child. When Ms. Smith began to testify about her excitement over being pregnant and her plans for the child, the court interrupted, excused the jury, and instructed her and her attorney that her devastation over the loss of the child, her buying baby presents, her plans for the future, and the fracturing of her hopes and dreams were all irrelevant and inadmissible. It then instructed the jury that statements about her excitement and her plans for the child were inadmissible and that the law did not permit ²³² recovery for emotional pain, distress, or grief suffered as a result of the loss of the child — an instruction it repeated at the end of the case. Finally, the court precluded Ms. Smith from testifying about being unable to work because of depression.

We are not concerned here with the judgment entered on Count II; it is not clear to us whether Mr. Holliday ever appealed that judgment, but, in any event, the issue as to him is not encompassed within the certified question. As limited by the court, Count I was submitted to a jury, which found Borello negligent and returned a verdict in Smith’s favor in the amount of $14,382 — $1,839 for past medical expenses, $2,443 for past loss of earnings, and $10,000 for non-economic damages. Aggrieved at the limitations imposed by the court, Smith appealed to the U.S. Court of Appeals for the Fourth Circuit, contending that, despite some of the language in her pleading, her claim was not in the nature of a wrongful death action and that she was entitled to recover, as part of her personal damages, for the emotional distress over the loss of the unborn child. Though conceding that she may not recover damages for the wrongful death of her non-viable fetus, she argued that “she can recover, as personal injuries to herself, the injuries to her fetus in útero (as part of her body), as well as for the emotional distress and other mental damages caused by the miscarriage and the loss of her child.” This being an issue of Maryland law in the case, unsettled by this Court, the Federal appellate court, invoking the Maryland Uniform Certification of Questions of Law Act (Maryland Code, §§ 12-601 to 12-613 of the Courts and Judicial Proceedings Article), certified to us the following question: “Whether, and to what extent, the injured mother of a previable fetus, miscarried as a result of a defendant’s negligence can recover as damages for medical expenses, lost wages, pain and suffering, emotional distress, emotional trauma, anguish, depression and/or grief resulting from the loss of her fetus?” It may be helpful, in introducing our answer to that question, to point out that, when tortious conduct causes ²³³ injury or death to one or more persons, three different causes of action may arise, depending on the circumstances.

If a person is injured but not killed, the person may sue for his or her own economic and non-economic damages — loss of wages, medical and other expenses, disfigurement, and physical and emotional pain and suffering caused by the tortious conduct. If a person is killed, two causes of action may arise. In what has been referred to as a “survival” action, the personal representative of the victim may sue to recover, for the estate of the victim, damages for the economic and non-economic losses suffered by the victim prior to his or her death — the damages that the victim would have been able to recover had he or she survived. See Maryland Code, § 6-401 of the Courts and Judicial Proceedings Article; Jones v. Flood, 351 Md. 120, 122-23, 716 A.2d 285, 286 (1998); Beynon v. Montgomery Cablevision, 351 Md. 460, 474-75 , 718 A.2d 1161, 1168 (1998).

By reversing the common law rule that abated actions for personal injuries on the death of the injured party § 6-401 simply preserves the common law action that the decedent would have had. In addition, if the deceased victim left a parent, spouse, or child (or, in the absence of such a person, any other person related to the victim by blood or marriage and who was substantially dependent on the victim), that person may sue, on his or her own behalf, for certain losses the person suffered by reason of the wrongful death of the victim. See Md.Code, §§ 3-901 to 3-904 of the Courts and Judicial Proceedings Article. That is the “wrongful death” or “Lord Campbell’s” action.

As presently codified, it permits the defined class of persons to maintain an action against a person whose “wrongful act” causes the death of another. The term “wrongful act” is defined to mean “an act, neglect, or default ... which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Id. § 3-901(e). Many of the cases in which we have examined the relationship between these various actions have involved survival and wrongful death actions, as those two often coexist ²³⁴ and are prosecuted together. As we pointed out in Stewart v. United Elec.

L. & P. Co., 104 Md. 332, 339 , 65 A. 49, 52 (1906), although those actions grow out of the same wrongful conduct, they are distinct: “[they]- are by different persons, the damages go into different channels, and are recovered upon different grounds----” See also Jones v. Flood, supra, 351 Md. at 126-27, 716 A.2d at 288 and cases cited therein. Here, it is clear that no survival action was filed, but because the physical trauma inflicted upon Ms. Smith also caused the death of her unborn fetus, for which she seeks emotional damages that, in Borello’s view, are recoverable, if at all, only in a wrongful death action, the relationship at issue is between her common law action for injuries to herself and the cause of action for the wrongful death of her unborn child. It is a different mix. The issue underlying the certified question arises from the conclusion by the District Court, no longer contested by Ms. Smith, that Kandel v. White, supra, 339 Md. 432 , 663 A.2d 1264 , precludes a wrongful death action based on the prenatal death of a non-viable fetus.

The point sought to be made by Borello is that a recovery for grief over the wrongful death of a child is allowable only in a wrongful death action and that, if such an action is not allowed under the circumstance at issue, the mother cannot be permitted to avoid the effect of Kandel by recovering those damages in her own personal injury action. Kandel built on and discussed three earlier cases. In Damasiewicz v. Gorsuch, 197 Md. 417, 438 , 79 A.2d 550, 559 (1951), we held that a child who was born alive with injuries sustained while still in his mother’s womb could recover for those injuries. Damasiewicz was obviously neither a wrongful death nor a survival action but simply recognized the right of a live person to sue for injuries caused to him or her, even though those injuries were inflicted prior to birth.

In State v. Sherman, 234 Md. 179, 182 , 198 A.2d 71, 72 (1964), a woman in her ninth month of pregnancy was in an automobile accident, as a result of which the baby, clearly viable, was delivered stillborn. Both survival and wrongful death actions were brought, and the issue was whether either would lie. Not ²³⁵ withstanding that Damasiewicz was neither a wrongful death nor a survival action, we found it “virtually controlling.” Sherman, 234 Md. at 183 , 198 A.2d at 72 . We reasoned that, if a viable child who dies shortly after birth may sue for prenatal injuries, its rights should not be cut off simply because it dies prior to birth.

That, of course, would justify the survival action. Because, as a result, “the party injured” would have had a cause of action, we also concluded that the wrongful death action was permissible. Both statutes — the survival statute and the wrongful death statute — we declared to be “remedial and designed to close a gap in the preexisting law.” Id. at 184 , 198 A.2d at 73 . The third case discussed in Kandel was Group Health Ass’n v. Blumenthal, 295 Md. 104 , 453 A.2d 1198 (1983).

Due to the alleged malpractice of certain health-care providers, the plaintiff gave birth, prematurely, to a non-viable, four-and-a-half month old fetus, who was born alive but who died within hours after delivery. We held that a wrongful death action could lie in that circumstance, finding it incongruous to recognize a child as alive for all purposes other than to sue for its injuries. As in Sherman , we tacitly concluded that, because the child would have a cause of action based on the tortious conduct of the defendant, the parents’ wrongful death action also would lie. Kandel arose from an automobile accident in which a woman eight weeks pregnant was severely injured and ultimately died.

Prior to her death, but as a result of the injuries she sustained, she suffered an incomplete abortion of the fetus. Several actions were pled. Estates were opened for the mother and the child, and the personal representative filed survival actions on behalf of each. The mother’s mother filed two wrongful death actions, one as the; surviving mother and one as the surviving grandmother.

The Circuit Court dismissed both the personal representative’s survival action and the grandmother’s wrongful death action with respect to the fetus on the ground that, as the fetus was neither born alive ²³⁶ nor viable at the time of its death, neither such action could lie, and we affirmed that ruling. 2 We concluded, from our analysis of the earlier cases, that, although viability has no relevance when the child is born alive, as the action is then for the death of “an independent living person with a separate legal existence who suffered injuries,” it does have significance when the fetus dies prior to delivery. Kandel, supra, 339 Md. at 437-38 , 663 A.2d at 1267 . In reaching that conclusion, which was the majority rule around the country, we noted that (1) to permit a wrongful death action with respect to a non-viable fetus could create a conflict with the mother’s absolute Constitutional right under Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), to abort her pregnancy prior to viability of the fetus, (2) under Roe v. Wade, a non-viable fetus is not regarded as a “person,” at least for purposes of an equal protection analysis, and (3) as a matter of public policy, the wrongful death statute should not be construed to create civil liability for the prenatal death of a non-viable fetus. 3 Given that decision, the District ²³⁷ Court in this case was entirely correct in concluding that a wrongful death action could not be maintained by Ms. Smith by reason of the prenatal death of her non-viable fetus. The extent to which that preclusion bars a recovery, in Ms. Smith’s action for her own personal injuries, for distress arising from the loss of the fetus is another matter.

That very issue was lurking in a case that came before us more than 40 years ago, although, because it was not preserved, we declined to reach it. In Rephann v. Armstrong, 217 Md. 90 , 141 A.2d 525 (1958), a woman eight months pregnant was involved in an automobile accident and, as a result, suffered a miscarriage; the baby was bom dead. In her action against the other driver, her doctor was permitted to testify that the baby died after the accident but before the miscarriage. Although the court instructed the jury that it could not award any damages for the loss of the child — an instruction to which neither party objected — the defendant appealed from the $5,750 judgment awarded to the plaintiff, contending that the verdict was excessive and that, despite the instruction, the jury must have awarded some amount for the loss of the baby.

In a per curiam opinion, we affirmed the judgment on the ground that the size of a verdict is rarely a ground for appellate review. To the extent that the defendant was complaining about the clarity of the court’s instruction, we noted that, because no objection was lodged by the defendant, its correctness was not before us. Because the plaintiff also did not object to the instruction and did not cross-appeal, we had no occasion to consider whether the instruction was correct from the plaintiff’s point of view. 4 ²³⁸ The courts in other States are in considerable disagreement over the extent to which, and on what theory, a woman who loses an unborn child as the result of another’s tortious conduct may, as part of her own personal injury action, recover for the mental anguish she suffered as a result of the aborted pregnancy and the loss of the child. In States where emotional damages are not allowed generally in the absence of some independent physical injury, the issue, particularly in malpractice cases against obstetricians arising from stillbirths, has sometimes hinged on whether the plaintiff established the requisite independent physical injury.

Courts that have allowed some recovery have relied on different theories in doing so. ²³⁹ Some courts that have allowed a recovery for distress arising from the death of a non-viable fetus have done so on the theory posited by Ms. Smith in this case-that prior to viability (or, in some States, prior to birth) the fetus is essentially a part of the mother’s body and that she may recover damages for the loss of that bodily part. An early statement of the “body part” theory came in Dietrich v. Northampton, 138 Mass. 14 (1884), where a woman between four and five months pregnant slipped on a defect in a highway, fell, and injured herself. The fall caused a miscarriage; the baby, which the court assumed was not viable, was either stillborn or lived but a few minutes. The mother sued and recovered damages for her injuries.

A wrongful death action was then tiled on behalf of the mother, which was dismissed. Although affirming that ruling — that the wrongful death action could not be maintained — the court, speaking through Justice Oliver Wendell Homes, noted that “as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered at all was recoverable by her.... ” Id. at 17 . A similar conclusion, and expression, is found in Allaire v. St. Luke’s Hospital, 184 Ill. 359 , 56 N.E. 638 (1900). The action there was by the child, for injuries sustained prior to birth.

The court held that no such action would lie because, at the time the injuries were inflicted, the child was “a part of the mother.” Id. at 640 . Although neither of those cases actually sustained an action by the mother for emotional damages arising from the loss of her unborn child, the theory espoused in them did serve as the basis for such a result in Snow v. Allen, 227 Ala. 615 , 151 So. 468 (1933), a malpractice action by the mother against her obstetrician. In response to the defendant’s claim that the action was one to recover damages for the prenatal death of the child, the court stated: “As we construe the complaint, no recovery of damages is sought on account of the death of the child, but for the pain and anguish suffered by the mother on account of its death, occasioned by the negligence of the defendant. If the ²⁴⁰ mother was caused to suffer physical pain by reason of the killing of the unborn child, occasioned by the negligence of the defendant, no one, we assume, would argue that she could not recover in this action for such pain; and, likewise, if on account of the negligent destruction of the child, in its delivery, the mother also suffered distress of mind, a recovery could be had for such mental anguish.

This is just what the plaintiff claims in the complaint with reference to the killing of her unborn child.” Id. at 471. Citing Dietrich and Allaire, the Alabama court concluded that: “the mother, in an action against the attending physician, may recover, in one and the same action, damages for all injuries sustained by her, by reason of — proximate result of — the negligence of the physician in and about the parturition of the infant, including the death of the infant, before it is severed from the mother.... ” Id. See also Taylor v. Baptist Medical Center, Inc., 400 So.2d 369, 374-75 (Ala.1981) (allowing recovery for mental anguish accompanying death of infant in delivery in malpractice action against obstetrician). In Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233, 236-37 (1986), the Virginia Supreme Court, noting that, under Virginia law an unborn child is a part of the mother until birth, held that, although the mother could not recover damages “ordinarily recoverable in a wrongful death action” — i.e., for the anticipated loss of the child’s society, companionship, comfort, or guidance, or for the loss of income or services from the child — nonetheless “injury to an unborn child constitutes injury to the mother and that she may recover for such physical injury and mental suffering associated with a stillbirth.” Other courts have allowed recovery without resorting to the “body part” theory.

In Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.Ct.App.1951), a woman was injured in a bus accident while two to four months pregnant. About five months later, her baby was born dead, a fact that she attrib ²⁴¹ uted to the injuries she received in the accident. The court held that, although there could be no recovery by or on behalf of the child, she could recover for the emotional damages arising from the loss of the child. It noted: “There can be no doubt at all that there could be a recovery for a result of an accident which might cause sterility, or which might otherwise prevent parents from having children.

If, as the result of actionable negligence, a husband or a wife should be so injured that either, in the future could not expect to produce children, surely this would be taken into consideration as an item of damage. It necessarily follows, we think, that when parents are actually expecting the arrival of a child, and they are deprived of the fruition of that great expectation by the actionable