# Greater Southeast Community Hospital v. Williams

> District of Columbia Court of Appeals · October 9, 1984 · 482 A.2d 394

URL: https://www.frixlaw.com/law-library/cases/9758071

## Case

- **Full name:** GREATER SOUTHEAST COMMUNITY HOSPITAL, Appellant, v. Maxine WILLIAMS, as Administratrix of the Estate of Baby Boy Williams, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 9, 1984
- **Citations:** 482 A.2d 394; 1984 D.C. App. LEXIS 495
- **Precedential status:** Published
- **Opinion:** Dissent by Terry
- **Judges:** Newman, Belson, Terry
- **Cited by:** 35 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/9758071

## How later opinions describe it (automated extraction)

- recognizing a wrongful death cause of action on behalf of a viable, stillborn fetus
- recognizing statutory causes of action for a viable fetus negligently harmed

## Opinion text

TERRY, Associate Judge,
dissenting:
I respectfully dissent — not on the merits, but on the ground that this court should not reach the merits. In my judgment, the issue presented in this appeal should be resolved by the legislature, not by this or any court.
I have no quarrel with the majority’s decision to adopt the rule announced in Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), as the law of the District of Columbia, and I would join in that decision if Bonbrest had any bearing on the outcome of this appeal. But Bonbrest does not apply to this case. The issue there, as my colleagues correctly state, was whether the law would recognize “a cause of action for prenatal injury, at least when the injury is to a viable infant later bom alive.” Ante at 396 (emphasis added). The instant case, however, presents a different issue: whether a stillborn or aborted fetus has a cause of action under our survival and wrongful death statutes for the injuries which caused it to be stillborn or aborted. Bonbrest does not answer that question.
To decide this case the court must determine whether a stillborn fetus can be regarded as a “person” within the meaning of the survival and wrongful death statutes. Both statutes are of venerable age; the latter is almost 100 years old, the former almost 200. My colleagues infer, and I agree, that the legislatures which enacted those statutes “gave no thought whatsoever to whether or not a viable fetus was a ‘person’ _” Ante at 397. Unlike my colleagues, however, I believe that we should not rush to fill this legislative vacuum by construing either statute in a manner beyond the contemplation of the legislature that enacted it. If this case required us to consider whether a plaintiff such as *399 “Baby Boy Williams” had a common-law right to bring an action for prenatal injuries, I would not hesitate to decide that question. The common law, after all, is judge-made, and judges must be free to re-examine established doctrines in the light of current knowledge and experience. That is just what the court did in Bonbrest v. Kotz, supra. But survival and wrongful death actions are creatures of statute, in derogation of the common law. Judges should be most reluctant to read into any such statute an interpretation which was surely not intended or even considered by the legislature, as my colleagues have done here.
The impact of the court’s decision in this case cannot be underestimated. It is certainly not limited to medical malpractice claims but applies across the board to any kind of allegedly tortious conduct resulting in the “death” of a viable fetus. One can readily foresee, for example, the case of a father who, disagreeing with his wife’s decision to have an abortion, files suit in the name of his aborted child against the doctor who performed it. Surely no thinking legislature would tolerate such a suit, but under the court’s decision today it would be permissible. Other scenarios, equally disturbing, come quickly to mind. I fear that my colleagues, in expanding the coverage of these two statutes, have shown themselves to be worthy rivals of Pandora.
I know that most of the courts which have considered the question have ruled in favor of recognizing a cause of action on behalf of a stillborn, formerly viable fetus. But there is also a respectable line of authority to the contrary. E.g., Kilmer v. Hicks, 22 Ariz.App. 552 , 529 P.2d 706 (1974); Justus v. Atchison, 19 Cal.3d 564 , 565 P.2d 122 , 139 Cal.Rptr. 97 (1977); Stem v. Miller, 348 So.2d 303 (Fla.1977); Graf v. Taggert, 43 N.J. 303 , 204 A.2d 140 (1964); Endresz v. Friedberg, 24 N.Y.2d 478 , 248 N.E.2d 901 , 301 N.Y.S.2d 65 (1969); Scott v. Kopp, 494 Pa. 487 , 431 A.2d 959 (1981). Many of these decisions have construed the word “person” in statutes similar to ours as excluding any fetus not born alive, usually on the ground that to hold otherwise would broaden the coverage of the statute beyond what the legislature intended. Pointing in the same direction is the Supreme Court’s holding in Roe v. Wade, 410 U.S. 113, 158 , 93 S.Ct. 705, 729 , 35 L.Ed.2d 147 (1973), that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” I agree generally with the reasoning of these decisions. I think the court should stay out of this particular thicket altogether, and leave it to the legislature to decide whether a fetus should be included within the statutory definition of a “person.” That is a legislative, not a judicial issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758071. Public record. Not legal advice.