# Nealis v. Baird > Supreme Court of Oklahoma · December 7, 1999 · 70 O.B.A.J. 3640 URL: https://www.frixlaw.com/law-library/cases/9576403 ## Case - **Full name:** Sheila D. NEALIS and Michael Nealis, Individually and as Parents and Next Friends of Baby Nealis, a Minor Child, Plaintiffs-Appellants, v. Blake A. BAIRD, M.D., Jim Knecht, D.O., and Michael D. Hartwig, M.D., Defendants-Appellees - **Court:** Supreme Court of Oklahoma - **Decided:** December 7, 1999 - **Citations:** 70 O.B.A.J. 3640; 996 P.2d 438; 1999 OK 98; 1999 Okla. LEXIS 110; 1999 WL 1116790 - **Precedential status:** Published - **Opinion:** Dissent by Hodges - **Judges:** Hargrave, Lavender, Opala, Watt, Lumpkin, Boudreau, Summers, Hodges, Strubhar, Kauger, Johnson, Wilson - **Cited by:** 106 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9576403 ## Opinion text HODGES, J. with whom STRUBHAR, S.J., and JOHNSON, S.J., join dissenting: ¶ 1 I respectfully dissent from today’s departure from the “viability” standard to one of “live birth.” I would adhere to the “viability” standard and refuse to extend a wrongful death recovery to the miscarriage of a non-viable fetus. ¶2 Until today, the standard utilized by this Court was the one adopted in most jurisdictions, “viability”. Despite a few decisions to the contrary, there is general agreement that a wrongful death action cannot be maintained for the loss of a non-viable fetus. See Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411 (1978). Accordingly, Oklahoma courts have adhered to. the “viability” standard, allowing recovery only for the loss of a viable fetus. See Evans v. Olson, 550 P.2d 924 (Okla.1976); Guyer v. Hugo Publishing Co., 830 P.2d 1393 (Okla.Ct.Civ.App.1992). This Court and most jurisdictions have not previously considered whether the “viability” standard is to be supplanted in the presence of conflicting evidence concerning live birth. However, sound policy considerations weigh in favor of applying “viability” to determine this matter. ¶ 3 Viability measures the ability of a miscarried fetus to sustain life outside the mother’s womb. Evans, 550 P.2d at 928 fn. 3. It recognizes that although it is clinically possible for a non-viable infant to show signs of life as recognized by a layman, i.e., heartbeat, breathing, brain-wave activity, it is medically accepted that a non-viable infant “lacks sufficient lung tissue to permit survival.” Bodkin, Delivery Room Decisions for Tiny Infants: An Ethical Analysis, 1 J. Clinical Ethics, 306, 307 (Winter 1990). The “viability” standard merely recognizes that a nonviable fetus cannot and will not survive with or without medical intervention. ¶ 4 The “live birth” standard, on the other hand, rests on an arbitrary distinction. It bases recovery on whether a non-viable fetus dies shortly before or shortly after miscarriage. Inevitable death from prematurity *464 should not present a situation in which live birth becomes the functional equivalent of viable for purposes of a wrongful death action. 1 ¶5 Maintaining the “viability” standard would also be consistent with the Oklahoma Court of Criminal Appeals’ adoption of a “viability” standard to determine which fetuses will be afforded the protection of Oklahoma’s homicide statute. In Hughes v. State, 868 P.2d 730 (Okla.Ct.Crim.App.1994), that Court supported its decision to abandon a “born alive” requirement in favor of a “viability” standard with this Court’s decision in Evans, 550 P.2d 924 . It noted that “consistency is certainly desirable” in the reasoning of the Oklahoma Supreme Court and the Oklahoma Court of Criminal Appeals. In the five years since the Hughes opinion, nothing has made consistency in the reasoning of these two courts any less desirable. The determination of whether a defendant wrongfully caused the death of a fetus should be guided by the threshold question of “viability” whether the cause is civil or criminal. ¶6 Today’s “live birth” analysis is not needed to resolve this matter. At trial, the issues of live birth and viability were hotly contested and the evidence was conflicting. Plaintiffs’ evidence supported a theory that the fetus was 24 — 25 weeks old, viable, and born alive. Defendants’ evidence was that the fetus was 20 — 21 weeks old, non-viable, and stillborn. The jury’s verdict in favor of defendants indicates that it (1) believed defendants’ version of the facts concerning live birth and viability or that (2) defendants performed no negligent acts or (3) both. In any of these instances, none of these defendants should be required to face a new trial. ¶ 7 The challenged instruction accurately stated the applicable standard, definitions and law at the time it was given. Only today’s change in the law makes the challenged instruction inadequate. I would retain “viability” as the threshold question and affirm the judgment entered upon the jury’s verdict. . Rejecting a live birth requirement, the Supreme Court of Alabama noted: [I]t is illogical to allow liability to depend on whether death from fatal injury occurred before or after live birth. Reconciliation of the proposition that if death occurred after live birth a cause of action exists, but if death occurs prior thereto a cause of action does not exist, is extremely difficult at best. The proposition’s inconsistency is best exemplified in the situation involving the death of twins who are wrongfully injured during pregnancy. To allow recovery to the one born alive, who subsequently dies, and to deny recovery to the stillborn who was injured in the same accident is obviously ludicrous. Eich v. Town of Gulf Shores, 293 Ala. 95 , 300 So.2d 354, 357 (1974). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9576403. Public record. Not legal advice.