DiDonato v. Wortman
320 N.C. 423, 1987 N.C. LEXIS 2261, 358 S.E.2d 489 (1987)
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Rule of Law:
Under North Carolina’s Wrongful Death Act, a viable fetus is considered a 'person,' and a cause of action may be maintained for its wrongful death. However, recoverable damages are limited to those that can be proven with reasonable certainty and exclude speculative claims for lost income and loss of services or companionship.
Facts:
- Norma DiDonato received prenatal care from defendant doctors.
- The doctors estimated Ms. DiDonato's due date was October 10, 1982.
- On October 26, 1982, sixteen days past the due date, an examination revealed a healthy fetal heartbeat.
- Four days later, on October 30, 1982, the fetal heartbeat had stopped.
- On that same day, Ms. DiDonato delivered a stillborn baby via Cesarean section.
- Plaintiff, the administrator of the child's estate, alleges the doctors' negligence was the proximate cause of the stillbirth.
Procedural Posture:
- Plaintiff, as administrator of the deceased child's estate, filed a wrongful death action against the defendant doctors in state trial court.
- The case was decided against the plaintiff in the lower courts, culminating in a decision by the North Carolina Court of Appeals (an intermediate appellate court) which denied the action.
- Plaintiff appealed the Court of Appeals' decision to the Supreme Court of North Carolina (the state's highest court).
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Issue:
Does North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2, permit a cause of action for the wrongful death of a viable fetus?
Opinions:
Majority - Exum, Chief Justice
Yes, North Carolina's Wrongful Death Act permits a cause of action for the wrongful death of a viable fetus. The court's primary task is to interpret the word 'person' in the statute. It is illogical to permit recovery for prenatal injuries not resulting in death, as established in prior case law, but to preclude recovery for prenatal injuries that do result in death. The legislature's 1969 amendment to the Act, which emphasized the value of 'human life' and expanded damages beyond pure pecuniary loss, undercut the rationale of prior cases that denied such actions due to the speculative nature of damages. The statute is remedial and must be construed broadly. However, damages for lost income, services, and companionship remain too speculative to be recovered in an action for a stillborn child. Damages for medical and funeral expenses, pain and suffering (if proven), and punitive damages are recoverable. To avoid double recovery of punitive damages, this action must be joined with any personal injury claim brought by the parents.
Dissenting - Webb, Justice
No, the Wrongful Death Act does not authorize this cause of action. The majority wrongly dismisses the legal significance of legislative inaction. The legislature was aware of prior court decisions denying such claims when it amended the Act in 1969 but chose not to explicitly include unborn children. Its continued silence after subsequent appellate court decisions reaffirmed this bar indicates legislative approval of the existing rule. The majority is engaging in judicial legislation by creating a cause of action the legislature did not. The majority further compounds its error by judicially repealing the statute's provisions for certain types of damages; if a cause of action exists, a plaintiff should be entitled to prove any damages the statute allows.
Concurring-in-part-and-dissenting-in-part - Martin, Justice
Yes, a viable unborn child is a 'person' under the wrongful death statute. This conclusion is supported by other North Carolina statutes that treat unborn children as persons for inheritance and property purposes, as well as criminal law precedent recognizing a viable fetus has a 'life capable of being destroyed.' However, I dissent from the majority's judicial limitation on recoverable damages. A plaintiff should be entitled to attempt to prove all damages enumerated in the statute, and the court should not preemptively bar recovery for certain categories as a matter of law. I also dissent from the mandatory joinder rule, as the decision to join cases should remain within the discretion of the trial judge based on the specific facts of each case.
Analysis:
This landmark decision reversed prior North Carolina appellate precedent and established a new cause of action for the wrongful death of a viable fetus, aligning the state with the majority of jurisdictions. By interpreting 'person' to include a viable fetus, the court expanded the scope of the Wrongful Death Act. However, the court created a unique framework by simultaneously limiting the available damages to non-speculative claims, attempting to balance the remedial purpose of the Act with the prohibition against purely conjectural damage awards. The mandatory joinder requirement also introduced a new procedural rule designed to prevent duplicative punitive damage awards against a single defendant.
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