Volume 31, No. 1
Ruminations on Danos v. St. Pierre 35 Years Later …
By: Craig Robichaux
In 1981, the Supreme Court of Louisiana in the landmark case of Danos, 402 So.2d 633 (La. 1981) held that a cause of action for the wrongful death of a fetus in utero existed. To reach its conclusion, the court essentially granted a fetus in utero legal persona for the limited purpose of having an authorized beneficiary assert a wrongful death action, regardless of whether the fetus was born alive. Prior to that decision, legal persona was reserved to those fetuses born alive. The legislature codified the Danos case in Article 26 of the Civil Code. See La. C.C. art. 26. Since Danos, very few cases have focused on the interesting medical-legal issues inherent in human gestation. In recent years, I have litigated some of these issues, and prepared this discussion to raise awareness of the intricacies involved in such factual presentations.
In utero Negligence Claims
One of the most recent cases dealing with fetal rights addressed the question of in utero negligence claims against the mother. In Cox v. Gaylord Container Corporation, 2003-0692 (La. App. 1 Cir. 2/23/04), 897 So.2d 1, the issue was whether a child born alive could assert an in utero negligence claim against her mother for an alleged in utero injury caused by the mother’s negligent conduct while in the course and scope of her employment. The child sought to recover for the employer’s vicarious liability. In Cox, the plaintiff was pregnant, and during her pregnancy she continued to work in an industrial plant. Federal law prohibited the employer from discriminating against her or reassigning her because of her pregnancy, and the employer was further limited in its ability to shield the plaintiff from job-related risks by virtue of union contracts. While operating a forklift, the mother negligently ran it into a building. Months later her child was born with cerebral palsy, and the contention was the accident caused the brain injury.
Plaintiff’s theory was quite simple. Under Louisiana law, because the child was born alive, she is deemed a separate person from the moment of conception, and thus could assert a claim against her mother, which was imputable to her employer under Article 2320. The workers’ compensation act did not shield the employer. Cushing v. Time Saver Stores, Inc., 552 So.2d 730, 731 (La. App. 1st Cir. 1989), writ denied 556 So.2d 1281 (La. 1990). Although the civil code recognizes persona from the moment of conception in cases where the fetus is born alive, in reality, the medical relationship between the mother and fetus in utero is symbiotic, at least to the point of fetal viability. Rather than address this reality, the en banc court of appeal chose to avoid it. The court refused to address the merits of the issue of whether a child in utero might at some point have a cause of action against its mother for negligent injury. The court did, however, rule that the employer cannot be vicariously liable for its employee’s negligence which produces injury in utero. Citing Article 2320, the court ruled that the employer could not have prevented the injury, and thus vicarious liability was unavailable to the child in its claim against the employer-defendant.
Fetal Demise Cases
Another factual situation that tests the Danos model arises in claims that involve premature delivery and fetal demise. Of courseDanos was a fetal death case; however, it involved a post-viability fetus. In a recent case I tried, the alleged malpractice of the physician resulted in a spontaneous abortion (the medical term for a miscarriage) of pre-viable twins at 20 weeks gestational age (hereinafter “GA”). Readily apparent from the general description of the case are the following issues: Which if any of the pre-viable fetuses have a survival action claim? Is there a Danos wrongful death claim or merely a loss of chance claim? And if this weren’t enough, what about application of Lejuene to a claim asserted by the parents?
Before discussing each of the possible issues, what permeates the discussion is the question of when does “life” begin. No one seems to want to delve into this issue, an issue that is often at the forefront of the abortion debate; however, it is not merely a moral question or a religious question. The determination of when life begins medically-legally is important in personal injury litigation in that it has a profound impact on the theories of recovery and items of damage.
The law is settled that regardless of GA, if a child is not born alive, then there is no survival action. What is not settled is what does the term “alive” mean? The term “alive” is not specifically defined in Louisiana law. There are, however, a number of contexts where the term “live birth or born alive” is used. In those areas, which are beyond the scope of this discussion, “live birth or born alive” has been defined as “breathes or shows signs of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles ….” See e.g., La. R.S. 40:1299.35.1. The interesting question in pre-viable fetuses is whether any of these actions are indicative of life, given the stage of development or the certainty of demise. In the fetal demise case, the survival action of the twin who died in utero was unavailable as a stillborn is not considered a “person” as defined in the Civil Code. See Wartelle v. Women’s and Children’s Hospital, Inc., 97-0744 (La. 12/2/97), 704 So.2d 778; Long v. Tangipahoa Hospital Service District #1 d/b/a North Oaks Medical Center, 2009-1650 (La. App. 1 Cir. 4/13/10), 36 So.3d 366. In particular, Article 26 of the Civil Code provides:
An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.
Wartelle squarely addressed the issue stating:
Our jurisprudence has recognized that the fetus can acquire a cause of action in utero contemporaneous with its tortuous injury. However, the cause of action can be pursued only if the fetus is subsequently born alive.
A survival action for damages suffered by a stillborn fetus clearly does not fit within this first exception to the general rule because the stillborn fetus, even though it may have provisionally acquired an action in utero, is not born alive. Because it is born dead, it is as though it had never existed and the cause of action it acquired conditioned on live birth is considered as never having been acquired. A survival action is based upon the victim’s right to recovery being transferred upon the victim’s death to the beneficiary. Taylor v. Giddens, 92-3054 (La. 5/24/93), 618 So.2d 834. The stillborn fetus cannot transmit any rights, because under the law it acquires none.
While this area of the law seems settled, the thorny question of when life begins raises its spectre. The Supreme Court premises the transmission of a survival action on the conclusion that it exists “only if the fetus is subsequently born alive.” What constituted being born alive? The issue was not merely an interesting discussion point, but was at the center of the litigation given that the twin fetuses were pre-viable. Pre-viable fetuses are currently defined gestationally as a fetus born earlier than 24-26 weeks, and sometimes includes in the definition a weight. At this stage the fetus is incapable of surviving outside the womb. We have already discussed the stillborn fetus and the survival action. The other pre-viable fetus (20 weeks GA) was born with a heart rate and with shallow respiration, but by definition of pre-viability was incapable of surviving outside the womb. The hospital rendered comfort measures to the fetus awaiting its certain demise. From a medical standpoint, there are issues concerning the fetus’s development of a central nervous system, of brain activity, or a pulmonary system, and other attributes normally associated with life. One could certainly argue that the pre-viable fetus was not born “alive.” Wartelle is of little instruction as it involved a full-term fetus, as opposed to a pre-viable fetus; however, Justice Lemmon, in his dissent, recognized that there should be some distinction between pre-viable fetuses and near term fetuses. The trial court submitted the survival action to the jury and the question was never answered because there was a defense verdict on liability.
Even assuming that the definition of the term “alive” is resolved in favor of maintaining a cause of action (as it was in the trial court), the next issue seems obvious. Given the early GA, any presumption of conscious pain and suffering would seem to be inapplicable, and thus to support recovery for a survival action, expert testimony would be required to prove consciousness and/or a nervous system capable of processing pain. General scientific opinion, unbiased by a particular slant to the pro-life or pro-choice debate, suggests that 26 weeks is the benchmark for the ability of a fetus to feel pain – in large part due to the failure to establish thalamocortical connections prior to that time in gestation. See Derbyshire, S W G, Can fetuses feel pain? British Medical Journal,http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/.
Wrongful Death Claims
Although Danos created persona for an in utero fetus so as to support a wrongful death claim arising from its death, developments in the law have further refined the distinction between wrongful death claims and loss of chance claims. Nothing in Danos or its codification suggests that these developments have limited application. Of critical concern is the jurisprudence defining loss of chance of survival.
Generally, in order for there to be a wrongful death claim, it must be established that there was a greater than equal chance of survival but for the alleged negligent conduct. Hebert v. Parker, 2000-0686 (La. App. 4 Cir. 5/23/01), 796 So.2d 19. As the court stated in Hebert:
A cause of action exists for a loss of a chance of survival in cases where there is a loss of a less than even chance of survival because of the alleged negligent treatment of a pre-existing condition. Smith v. State of Louisiana, Dept. of Health and Hospitals, 95-0038 (La.6/25/96) 676 So.2d 543. This is distinguished from cases with more than a fifty percent chance of survival that are reviewed for the loss of life in wrongful death actions.
Id. at 184.
For a less than equal chance of survival due to the alleged negligence, the claim is for a loss of chance for a better outcome (survival). In the fetal demise case, although the plaintiffs alleged a claim for wrongful death, the law has seemingly recognized that a fetus at the GA of 24 weeks has a less than 30 percent probability of survival. Cooper v. Black, 39 So.2d 352 (La. App. Orl. 1923). Even today, the March of Dimes reports the following statistic on survivability: At 23 weeks – 17 percent; At 24 Weeks – 39 percent… March of Dimes. Quint Boenker Premie Survival Foundation. http://preemiesurvival.org/info/index.html. The survivability decreases precipitously the earlier on the gestational period the fetus is delivered. Medicine seems to concur in the survivability percentages related to GA at the time of delivery. Perhaps as medicine progresses these percentages will change.
In the fetal demise case, the trial court denied an exception of no cause of action based upon Cooper, and allowed the issue to be presented during the trial. At trial the evidence was at 20 weeks GA, there was essentially a zero percent probability of survival. Notwithstanding the convergence of medicine and the law on this point, the trial court presented to the jury both questions (i.e., wrongful death and loss of chance), but as alternative theories of recovery. In my opinion, in cases involving pre-viable fetuses, the viable claim is for a loss of chance of a better outcome, not wrongful death. The chance of survival of a fetus at the gestational age of 20 weeks is essentially zero (0%). The youngest gestationally-aged fetus to survive was 21 weeks, 6 days. That case was described as a “miracle.” Fetuses delivered between 23 and 25 weeks, although having a chance of survival, suffer moderate to severe disability – often multifactorial.
Assuming the above is an proper resolution of the legal precept, to prevail in a loss of chance case, the plaintiff need not prove the patient would have survived but for the defendant’s malpractice; however, the plaintiff must establish by a preponderance of the evidence he had a chance for survival, and that this chance was lost due to the defendant’s negligence. Hebert, supra; see also Snia v. Medical Center of New Orleans, 93–2367 (La. App. 4 Cir. 5/26/94), 637 So.2d 1290. The fact-finder is instructed to focus on the loss of chance of survival as a distinct compensable injury, and value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages. Braud v. Woodland Village, L.L.C., 2010-0137 (La. App. 4 Cir. 12/8/10), 54 So.3d 745. If the chance of survival is de minimus or almost non-existent, the trier of fact can conclude there was no chance of chance, or that the defendants’ alleged conduct did not cause or contribute to the loss. Smith, supra. If there is no chance of survival in the first place, then there is nothing lost by the defendants’ alleged conduct, even assuming a breach occurred. Hebert v. Plaquemine Caring, L.L.C., 2007-2243 (La. App. 1 Cir. 6/16/10), 43 So.3d 239. In the case of pre-viable fetuses, it seems that by definition there is no way to prove a loss of chance, as survivability is 0%. Notwithstanding the medicine, the trial court submitted the issue to the jury. Moore, Keith and Persaud, T., The Developing Human: Clinically Oriented Embryology, p. 103 (Saunders 2003) suggest that weight at the time of delivery may be a more critical component that gestational age. They suggest that the survivability of a fetus weighing less than 500 gm is extremely remote – describing the likelihood as “rare.”
Lejeune (Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990)) claims emanate from the case by the same name and were codified in Article 2315.6 of the Civil Code. In my opinion, bystander recovery is limited to instances where the catastrophic injury does not result in immediate death. As stated by the court, “[a] duty does exist to protect a plaintiff from mental anguish occasioned by the negligent infliction of injury to a third person” under limited circumstances. The conclusion seems obvious from the nature of a bystander claim, although it appears some courts struggle with the precept. A bystander claim involves expansion of recovery to allow another (the bystander), who is not injured, to recover his emotional damage resulting from the injury to a third party. In death claims, the wrongful death claim – where an individual is allowed to recover for his individual loss because of the death of a third party – performs the identical function. La. C.C. art. 2315.3. Witnessing the death of a person arising out of another’s negligence should be compensated via the wrongful death action, assuming that the facts otherwise support a wrongful death claim. Wartelle, when read carefully, expresses the proper treatment of claims involving witnessing the death of another when the court stated: “Alternatively, [the trial court] may have concluded that the proof offered by the parents in support of their bystander claims was properlyconsidered in the context of their wrongful death claims.”
Early jurisprudence recognized a claim by a parent for bystander damages resulting from injury to a viable child in the birthing process.Skorlich v. East Jefferson Gen. Hosp., 478 So.2d 916 (La. App. 5th Cir.1985) (Physician owed a duty to father as well as to mother not to negligently injure the child during the birth process, finding that since the father’s seed created the fetus, he had the “obligation to care, protect and raise the fetus to adulthood.” Presumably, the court found that the father would likely suffer mental anguish from any possible injury to the child because of his status as father and the relationship normally expected between a father and his child.). Rather than treat it as a bystander claim, the court chose to adopt an independent duty analysis, as in 1985 bystander recovery was not recognized in Louisiana. In post-Lejeune cases, bystander recovery would seem available in cases involving negligent injury in the birthing process, assuming that the other elements are proven.
In the fetal demise case involving pre-viable fetuses, the one fetus was stillborn. No Lejeune claim should exist under any circumstances – principally due to the fact that the fetus is not granted persona. The only measure of recovery is for wrongful death, and as discussed such a claim would seemingly be limited by the 50 percent rule demarking the distinction between wrongful death and loss of chance cases. As to the other pre-viable fetus, the question of being born “alive” again becomes relevant. Even assuming the one fetus who was born with a heart rate and shallow respirations, but with essentially a zero percent probability of survival were deemed to be born “alive,” and assuming further that the Lejeune claim is available in a death case, the elements necessary to support a Lejeune claim all but seem to refute its existence.
Clearly, it seems that relationship of a parent and child (fetus) is of the type that the court would recognize as being within the class of permissible claimants. It is clearly within the class of permissible claimants allowed by Lejeune’s codification in Article 2315.6. The troubling elements are witnessing the injury causing event, and the requirement of serious emotional distress that is foreseeable. Under the facts of the fetal demise case, there was nothing done at the delivery of the fetuses due to spontaneous ruptured membranes that was negligent. Instead, the allegations of negligence relate to a physician’s omissions during routine prenatal visits dating weeks or a month prior to the spontaneous abortion. The issue of the absence of a temporal connection was discussed inTrahan. 97-1224 (La. 3/2/99); 728 so.2d 1273. It would seem the temporal relationship is not met. For example, in Rauch v. Schiavi, 00-160 (La. App. 5 Cir. 10/18/00), 772 So.2d 749, the court held where the negligence is alleged to be the inadequate post-operative treatment, there is no Lejeune claim since the negligence did not occur simultaneously with the injury alleged to support the bystander claim.
Further, on the issue of serious emotional distress, the Supreme Court provided a non-exhaustive list of examples of serious emotional distress. Included within that list were neuroses, psychoses, chronic depression, phobia and shock. While the above list is clearly dicta, in the fetal demise case it seems unlikely such an event (commonly known as a miscarriage) would fit within the stated elements necessary to support such a claim. Justice Cole, for whom I clerked in 1986, wrote in his concurrence in Lejeune the test should be as follows: “[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” There are a number of cases that discuss this element in the context of a medical malpractice claim. In Held v. Aubert, 2002-1486 (La. App. 1 Cir. 5/9/03), 845 So.2d 625, the court discussed the existence of a Lejeune claim arising in the context of a difficult delivery where the physician was required to use a vacuum extractor to deliver the term baby. Apparently the parents were in the delivery room. The court of appeal held under these circumstances the trial court was in error in not instructing the jury on Lejeune damages; however, the court held the description of damages fell short of the severe and debilitating emotional injury necessary to support a Lejeune claim. I am not sure any plaintiff can prove severe and debilitating emotional distress in a case involving pre-viable fetuses.
In utero claims present many interesting issues that the practitioner should consider when presenting them in court. Presumptions and/or rights that generally exist in favor of persons who are “alive” seemingly vanish when viability is no longer applicable. Unfortunately, the issue of the beginning of life is difficult to medically and legally handle given the far-reaching implications of such a conclusion. However, without at least some consideration of the issue, error enters into litigation when trying to evaluate and defend damage claims.
Craig Robichaux is a managing partner in the law firm Talley, Anthony, Hughes & Knight, LLC in Mandeville. *Special thanks and an acknowledgement go to his partner, Jocelyn “Josie” Guidry, whose assistance at the trial of the fetal demise case was invaluable.