wrongful death statute is "remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act"
How later courts described this case
- wrongful death statute is "remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act"
- Hutchinson, J., dissenting ( ... the majority incorrectly ventures into policy areas more properly left to the legisla-ture_
- difficulties in proving damages in an action for wrongful death of a fetus cannot be greater or different in character from the difficulties in determining damages for the wrongful death of a child which survived delivery for a few minutes
- declining “to decide the criminal liability, if any, attendant upon causing the death of a child en ventre sa mere”
Written by the judges who cited it.
The opinion
*237 FLAHERTY, Justice
dissenting.
The question presented by this case, whether a lawsuit may be brought under our Wrongful Death and Survival Acts as a result of injuries allegedly received by a child en ventre sa mere which allegedly caused the child to be stillborn, is once again before us. I dissent from the majority’s view.
The crux of the matter is this: neither the Wrongful Death Act nor the Survival Act was intended to provide a recovery in cases where the person on whose behalf the suits are brought was never alive. For purposes of monetary recovery, a stillborn child was never alive. Further, the emotional distress injuries which the parents of the stillborn child allegedly suffered as a result of the stillbirth are recoverable in actions brought by the parents in their own rights. Our prior decision in Scott v. Kopp, 494 Pa. 487 , 431 A.2d 487 (1981), should be reaffirmed.
The advantage of reaffirming the Scott case is that it provides a clear and easily administered rule which protects the interests of all parties. The parents, after all, are the only parties in a case such as this one who have an injury, and they are able to sue on their own behalf to recover for whatever injuries they may have. The disadvantage of overruling the Scott case is that the majority approach provides an opportunity for the parents to receive a double recovery.
No one doubts the suffering and terrible disappointment which most expectant parents would experience upon learning that their child was stillborn, and if a wrong were committed which caused the stillbirth, the wrongdoer should be liable in damages to the parents. But not twice! The decision of the lower court should be affirmed.