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Shaw v. Jendzejec
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 208
Docket:	Yor-97-440
Argued:	January 5, 1998
Decided:	August 12, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN,  DANA, and SAUFLEY, JJ.




CHARMAINE B. SHAW v . STEPHEN M. JENDZEJEC et al.
DANA, J.

	[¶1]  Charmaine B. Shaw, the personal representative of the estate of
Thomas L. Shaw, IV, appeals from a summary judgment entered in the
Superior Court (York County, Calkins, J.) in favor of the defendants, Stephen
M. Jendzejec, York Family Practice, and York Hospital, on her wrongful
death claim.  Shaw asks us to overturn our decision in Milton v. Cary Med.
Ctr., 538 A.2d 252 (Me. 1988), and hold that a viable fetus is a "person"
whose heirs are entitled to maintain a cause of action pursuant to Maine's
wrongful death statute, 18-A M.R.S.A. § 2-804 (1998).  We affirm the
judgment.
I.
	[¶2]  The tragic facts of this case are not in dispute.  On February 10,
1994, Charmaine Shaw was admitted to York Hospital for the delivery of her
child after a full term pregnancy.  During the labor, the baby's head was
delivered up to his mouth and ears, but his shoulder became stuck on
Charmaine's pubic bone.  Approximately twenty minutes after he became
stuck, the baby was delivered, but despite resuscitative efforts, he never had
a heart beat or respiration and was determined to be stillborn.  Charmaine
and her husband, Thomas, filed a notice of claim pursuant to 24 M.R.S.A.
§ 2903 (1990 & Pamph. 1997),{1} alleging that the child's death resulted
from negligence on the part of the defendants and seeking damages
pursuant to Maine's wrongful death statute,{2} as well as for their own pain
and suffering and loss of consortium.  After extensive discovery the
defendants moved for a summary judgment on the wrongful death portion of
the Shaws' claim, arguing that our decision in Milton v. Cary Med. Ctr., 538
A.2d 252 (Me. 1988), precluded the Shaws' claim.  The court granted the
motion, and this appeal followed.{3}
	[¶3]  With this case, we must decide for the second time in ten years
whether Maine law recognizes a cause of action for wrongful death brought
by the parents of a stillborn fetus.  In Milton, we answered this question in
the negative by strictly construing Maine's wrongful death statute and held
that recognition of such a cause of action would create an anomaly that
would "do violence to the very fabric of the Probate Code."  Milton, 538 A.2d
at 255.  Although a careful study of our decision in Milton reveals that the
opinion contains several analytical flaws, we conclude that the force of stare
decisis compels us to reaffirm its holding.
II.
	[¶4]  In Milton, our use of an insulated method of statutory
interpretation that declined to consider the rationales offered by other
jurisdictions on this important issue was out of character.  See Milton, 538
A.2d at 254.  Indeed, we offered no explanation for deviating from our
routine practice of examining how other courts have treated analogous
statutes as at least one factor when interpreting our own statutes.  See, e.g.,
Campbell v. Town of Machias, 661 A.2d 1133, 1136 (Me. 1995) (cases
arising under the federal Freedom of Information Act considered useful in
analyzing the scope of  Maine's Freedom of Access Act); Gordon v. Maine
Cent. R.R., 657 A.2d 785, 786 (Me. 1995) (appropriate to look to analogous
statutes and case law for guidance when term is not defined in relevant
statutory provisions or prior judicial decisions).  Accord Levesque v. Chan,
569 A.2d 600, 601 (Me. 1990); Town of Orient v. Dwyer, 490 A.2d 660, 662
(Me. 1985) (relying on federal court interpretations of the federal rules
when interpreting the parallel rules of Maine courts).  "Similar statutes of
other states comprise a type of extrinsic aid deserving of special attention in
the process of interpretation."  2B Norman J. Singer, Sutherland Statutory
Construction § 52.01, at 197 (5th ed. 1992).
	[¶5]  Next we engaged in the awkward exercise of trying to harmonize
the provisions of the wrongful death statute with other provisions of the
Probate Code.  Although included with other probate laws in our statutes
since 1944, an action for wrongful death is, and always has been, essentially
a tort action.  It is likely that the statute was placed with other laws
governing probate procedure when Maine's laws were recodified in 1944
simply because the action is customarily brought by the personal
representative of the deceased.  There is simply no evidence that the
Legislature's decision to place the statute within the probate provisions
either in 1944 or when it adopted the Uniform Probate Code in 1981 was
intended to change the law's meaning or interpretation in any way.  See
Dennis M. Doiron, A Better Interpretation of the Wrongful Death Act, 43 Me.
L. Rev. 449, 463-67 (1991).{4}
	[¶6]  Our determination that permitting a cause of action for the
wrongful death of a viable fetus would grant the fetus rights that it does not
have in the rest of the Probate Code, see Milton, 538 A.2d at 255, was also
questionable.  The wrongful death statute grants no rights to the deceased. 
The statute provides a cause of action only to the living relatives or heirs of
the deceased.  In this respect we confused the wrongful death cause of
action with the survival cause of action, which is separately provided for in
18-A M.R.S.A. § 3-817.{5}  The wrongful death cause of action, although
dependent on a cause of action that the deceased would have possessed had
death not ensued,{6} see 18-A M.R.S.A. § 2-804(a), is a separate and distinct
cause of action that statutorily is granted to the deceased's family members
or heirs.  Because of our confusion on this point, we concluded that allowing
the action following a stillbirth would somehow grant some legal right to the
fetus that it did not have otherwise, when such is not the case.
	[¶7]  Finally, our use of Maine's abortion statutes to support our
conclusion that the word "person" in section 2-804(a) is defined as "one
born alive" was curious, to say the least.  See Milton, 538 A.2d at 255-56. 
Our statutes define the word "person" in numerous ways depending on the
context in which the word is used.{7}  The Probate Code itself defines
"person" as "an individual, a corporation, an organization, or other legal
entity."  18-A M.R.S.A. § 1-201(29) (1988).  When the Legislature referred
to a "human person" as "one born alive" in 22 M.R.S.A. § 1595 it did so
explicitly for purposes of the chapter governing abortions only.{8}  The
circumstances presented in Milton did not implicate Maine's abortion law in
any way, and our use of a statutory definition that was explicitly limited to
the abortion context to support our holding in a wrongful death case was of
limited value.  Cf. Seeley v. Dir. of Bureau of Labor Standards, 505 A.2d 95,
96 (Me. 1986) (attempt to import definition of "wages earned" from related
statute unavailing).
III.
	[¶8]  Nonetheless, in order to justifiably overturn the rule of law we
adopted in Milton, our unease with the analysis undertaken in that case
must outweigh the compelling policy of following judicial precedent.  Stare
decisis serves "the obvious need to promote consistency and uniformity of
decisions."  Adams v. Buffalo Forge Co., 443 A.2d 932, 935 (Me. 1982); see
also Myrick v. James, 444 A.2d 987, 997 (Me. 1982) ("It is the historic
policy of our courts to stand by precedent and not to disturb a settled point
of law.").  Pursuant to that doctrine,
a deliberate or solemn decision of a court, after argument on a
question of law fairly arising in the case, the disposition of which
is necessary to the determination of the case, is an authority or
binding precedent in the same court and in other courts of equal
or lower rank, in subsequent cases where the very point is again
in controversy.
Myrick v. James, 444 A.2d at 997-98.  Although we recognize that the
analytical underpinnings of our Milton decision are subject to some criticism
and understand that some may disagree with our conclusion in Milton, that
decision was certainly the product of deliberate and solemn analysis.
	[¶9]  In Myrick we articulated a set of guiding principles pursuant to
which a prior decision may and should be overruled, stating that such action
is appropriate when:
(1) the court is convinced that the rule of the prior decision
operates harshly, unjustly and erratically to produce, in its case-
by-case application, results that are not consonant with
prevailing, well-established conceptions of fundamental fairness
and rationally-based justice, (2) that conviction is buttressed by
more than the commitment of the individual justices to their
mere personal policy preferences, that is, by the substantial
erosion of the concepts and authorities upon which the former
rule is founded and that erosion is exemplified by disapproval of
those conceptions and authorities in the better-considered
recent cases and in authoritative scholarly writings, (3) the
former rule is the creation of the court itself in the legitimate
performance of its function in filling the interstices of statutory
language by interpretation and construction of vague, indefinite
and generic statutory terms, (4) the Legislature has not,
subsequent to the court's articulation of the former rule,
established by its own definitive and legitimate pronouncement
either specific acceptance, rejection or revision of the former
rule as articulated by the court, and (5) the court can avoid the
most severe impact of an overruling decision upon reliance
interests that may have come into being during the existence of
the former rule by creatively shaping the temporal effect of the
new rule articulated by the holding of the overruling case.
Id. at 1000 (quotation omitted).
	[¶10]  The live-birth rule is the product of our legitimate
interpretation and construction of imprecise statutory language.  Further,
despite the Legislature's attempt to address our holding in Milton, see L.D.
551 (114th Legis. 1989), that body has neither accepted, rejected, nor
revised that judicially created rule.  Therefore, neither the third nor the
fourth principle articulated in Myrick presents a substantial barrier to our
overturning of Milton.
	[¶11]  The remaining Myrick factors, however, caution us against
overturning the rule we adopted in Milton.  We are not firmly convinced that
allowing a cause of action for the wrongful death of a viable fetus would
necessarily alleviate any harshness that results from the live-birth rule.  The
circumstances in each of the cases presenting this issue undoubtedly are
devastating for the families involved, and allowing the cause of action for the
wrongful death of a viable fetus would certainly permit a greater number of
persons to seek recovery for the loss of an expected child.  We conclude,
however, that drawing these types of lines, which inevitably will lead to
harsh results for some parties, is a public policy task uniquely suited to the
legislative, rather than the judicial process, especially in the present
circumstances, where we have previously issued a definitive ruling.
	[¶12]  In addition, although our holding in Milton has been criticized
in two law review articles,{9} there has been virtually no change in the
alignment of other courts with respect to their positions on the issue,{10} nor
are we aware of any significant shift in societal views during the past ten
years that compels us to abandon our prior holding.
	[¶13]  In summary, we conclude that the strong policies underlying
the doctrine of stare decisis outweigh any uncertainty we have regarding our
holding in Milton.  We therefore are of the opinion that it is appropriate to
leave the important public policy decision of whether Maine should adopt a
cause of action for the wrongful death of a viable fetus to those most
appropriately situated to make that determination:  the popularly elected
members of the Legislature.
	The entry is:
					Judgment affirmed.

Attorneys for plaintiffs: Jared R. Green, Esq., (orally) Kenneth C. Brown, Esq. Abramson, Reis, Brown & Dugan 1819 Elm Street Manchester, NH 03104-2910 D. Michael Noonan, Esq. Shaheen & Gordon P O Box 977 Dover, NH 03821-0977 Attorneys for defendants: Elizabeth A. Germani, Esq., (orally) Ernest J. Babcock, Esq. Friedman, Babcock & Gaythwaite P O Box 4726 Portland, ME 04112-4726 (for York Hospital) Christopher D. Nyhan, Esq. Penny Littell, Esq. Preti, Flaherty, Beliveau & Pachios, LLC P O Box 9546 Portland, ME 04112-9546 (for Jendzejec, York Family Practice and others)
FOOTNOTES******************************** {1}. 24 M.R.S.A. § 2903, part of the Maine Health Security Act, governs actions for claims of professional negligence against healthcare providers and practitioners and requires the filing of a written notice of claim and participation in a prelitigation screening and mediation process prior to commencing a lawsuit. {2}. The entire text of Maine's wrongful death statute, 18-A M.R.S.A. § 2-804 (1998), is as follows: § 2-804. Actions for wrongful death (a) Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person or the corporation that would have been liable if death had not ensued shall be liable for damages as provided in this section, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as shall amount to a felony. (b) Every such action must be brought by and in the name of the personal representative of the deceased person, and the amount recovered in every such action, except as otherwise provided, is for the exclusive benefit of the surviving spouse if no minor children, and of the children if no surviving spouse, and one- half for the exclusive benefit of the surviving spouse and one-half for the exclusive benefit of the minor children to be divided equally among them if there are both surviving spouse and minor children, and to the deceased's heirs to be distributed as provided in section 2-106 if there is neither surviving spouse nor minor children. The jury may give such damages as it determines a fair and just compensation with reference to the pecuniary injuries resulting from the death to the persons for whose benefit the action is brought and in addition shall give such damages as will compensate the estate of the deceased person for reasonable expenses of medical, surgical and hospital care and treatment and for reasonable funeral expenses, and in addition may give damages not exceeding $150,000 for the loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts as those constituting the underlying claim, to the persons for whose benefit the action is brought, and in addition may give punitive damages not exceeding $75,000, provided that the action is commenced within 2 years after the decedent's death. If a claim under this section is settled without an action having been commenced, the amount paid in settlement must be distributed as provided in this subsection. No settlement on behalf of minor children is valid unless approved by the court, as provided in Title 14, section 1605. (c) Whenever death ensues following a period of conscious suffering, as a result of personal injuries due to the wrongful act, neglect or default of any person, the person who caused the personal injuries resulting in such conscious suffering and death shall, in addition to the action at common law and damages recoverable therein, be liable in damages in a separate count in the same action for such death, brought, commenced and determined and subject to the same limitation as to the amount recoverable for such death and exclusively for the beneficiaries in the manner set forth in subsection (b), separately found, but in such cases there shall be only one recovery for the same injury. (d) Any action under this section brought against a governmental entity under Title 14, sections 8101 to 8118, shall be limited as provided in those sections. {3}. The summary judgment order did not dispose of the Shaws' claims for their own pain and suffering and loss of consortium. The court denied the parties' request to enter a final judgment on the wrongful death claim to allow an appeal on that issue. The parties agreed, however, to dismiss all claims other than the wrongful death claim without prejudice, thereby allowing this appeal. {4}. The Maine Probate Law Revision Commission, which in 1978 recommended to the Legislature the adoption of the model Uniform Probate Code with some modifications, explained that certain sections of the proposed Code, including the wrongful death provision, were included in the Code merely for the sake of convenience. Some parts of the proposed Maine Probate Code that do not appear in the Uniform Probate Code are simply sections preserved from present Maine law which are not covered by, and are not inconsistent with, the uniform version, but are merely supplemental to its operation and, in some instances, have been modified to fit into the Uniform Probate Code system. Maine Probate Law Revision Commission, Report to the Legislature and Summary of the Commission's Study and Recommendations Concerning Maine Probate Law 8 (Sept. 1978). The Commission made clear that no change in prior interpretations of the wrongful death statute were intended by its inclusion in the revised Probate Code: "[I]n preserving substantially intact the present Maine Wrongful Death Act as § 2-804 of the proposed new Title 18-A the Commission did not have time to fully consider any possible changes that might be desirable in those provisions." Id. at 47. {5}. 18-A M.R.S.A. § 3-817 (1998) provides in pertinent part: (a) No personal action or cause of action shall be lost by the death of either party, but the same shall survive for and against the personal representative of the deceased . . . . {6}. There can be little doubt that the Shaws' son would have been entitled to bring a malpractice action for injuries received while in utero had he lived. Similarly, there would be no objection to the Shaws bringing a wrongful death action if the injuries caused his death after being born alive. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 55, at 368 ("The child, if he is born alive, is now permitted in every jurisdiction to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth an action will lie for his wrongful death."). {7}. In fact there are approximately one hundred definitions of "person" scattered throughout our Revised Statutes. See, e.g., 5 M.R.S.A. § 8002(8) (1989) (Administrative Procedure Act) ("'Person' means any individual, partnership, corporation, governmental entity, association or public or private organization of any character. . . ."); 17-A M.R.S.A. § 2(20) (1983) (Criminal Code) ("'Person' means a human being or an organization."); 22 M.R.S.A. § 2901(6) (1992) (Anatomical Gift Act) ("'Person' means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal entity."). {8}. Maine's abortion law provides: "Live born" and "live birth," as used in this chapter, shall mean a product of conception after complete expulsion or extraction from its mother[,] irrespective of the duration of the pregnancy, which breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Each product of such a birth is considered live born and fully recognized as a human person under Maine law. 22 M.R.S.A. § 1595 (1992) (emphasis added). Section 1595 was enacted in 1973 simultaneously with section 1594, which provides: Whenever an abortion procedure results in a live birth, failure to take all reasonable steps, in keeping with good medical practice, to preserve the life and health of the live born person shall subject the responsible party or parties to Maine law governing homicide, manslaughter and civil liability for wrongful death and medical malpractice. 22 M.R.S.A. § 1594 (1992). Far from attempting to provide an expansive definition of "person," these statutes, read together, clearly aim to address the very limited circumstance of a health care provider's responsibility in the event of complications during an abortion procedure. Thus, the abortion statute's definition of "person" should be limited to the abortion context only. {9}. See Dennis Doiron, A Better Interpretation of the Wrongful Death Act, 43 Me. L. Rev. 449 (1991); Stan Piecuch, Note, Milton v. Cary Medical Center: A Viable Fetus is Not a Person Under Maine's Wrongful Death Statute, 41 Me. L. Rev. 429 (1989). {10}. Since our decision in Milton, the Supreme Court of Montana, overruling precedent, found that a fetus is a person under Montana's wrongful death statute. Strzelczyk v. Jett, 870 P.2d 730 (Mont. 1994). In Milton, we mistakenly included North Carolina among the states that did not allow a wrongful death action on behalf of a viable fetus, citing Gay v. Thompson, 146 S.E.2d 425 (N.C. 1966). See Milton, 538 A.2d at 254 n.5. At the time of our decision, the North Carolina Supreme Court had already interpreted a new version of their wrongful death statute to allow this cause of action. DiDonato v. Wortman, 358 S.E.2d 489 (N.C. 1987). Most recently, a federal court has construed the Hawaii wrongful death statute to allow a cause of action with respect to the death of a viable fetus, although the state courts have not addressed this issue. Wade v. United States, 745 F. Supp. 1573 (D. Haw. 1990).