(dissenting).
This case is a travesty of justice and I write for Heather Wheeldon and the unborn children of this world. And I write for her parents who tragically lost her to a testing procedure called amniocentesis. This case should be reversed and sent back to the trial court for a retrial.
*379A defense motion for partial summary judgment was granted by the trial court which dismissed the wrongful death count in the complaint, the holding of the trial court being that there is no cause of action for the wrongful death of an unborn “viable” child under South Dakota law. I do not like the word “viable.” It is not my word but it is a word that lawyers and courts seem to use. A viable child, apparently, is a child who is capable of living or capable of growing or developing or capable of working and functioning or developing adequately. So far as this writer is concerned, I shall refer to an unborn child as a child and as a person. An unborn child is a person just as much as a lawyer, a judge, or a justice. The problem is: an unborn child cannot address the jury, talk to the judge, or advocate his/her case. Were this so, the unborn’s advocacy would be unrivaled in the courts of our land.
Heather Wheeldon was a full-term child. Her expected date of delivery was on or about September 10, 1982, per Dr. Madison’s testimony. Heather passed on from this life on September 8, 1982, at the Sioux Valley Hospital in Sioux Falls. An amniocentesis was performed at 11:30 a.m. on that day in Dr. Madison’s office and the child made thrashing movements. When the mother later felt no movement of the child within her, and being concerned, she went to the said Sioux Valley Hospital where it was determined that the child had died. According to the testimony, the child was delivered by cesarean section and she was an absolute normal, perfectly formed baby and of full-term size. By medical testimony, to include that of Dr. Madison, it was established that the placenta attached to the child’s umbilical cord had been lacerated by the amniocentesis needle and the child had bled to death. Heather would have survived if only she had been delivered after the bloody amniocentesis tap and before she exsanguinated. SDCL 21-5-1 is the wrongful death statute in South Dakota and it provided in pertinent part, at the time of Heather’s death:
Whenever the death or injury of a person shall be caused by a wrongful act, neglect, or default ... such as would have entitled the party injured to maintain an action and recover damages in respect thereto, ... the person who, would have been liable, if death had not ensued, ... shall be liable, to an action for damages _ (Emphasis supplied.)
Heather Wheeldon was a person within the meaning of the wrongful death statute. The fact of her life, a living life, is not to be denied, nor should the wisdom of the public policy of our forefathers be denied. Heather Wheeldon is, and was, entitled to the protection of the law. The first unalienable right of man is the right to life itself. Since 1887, the law of the State of South Dakota has provided, and is now found at SDCL 26-1-2:
Unborn child deemed existing person. A child conceived, but not born, is to be deemed an existing person so far as may be necessary for its interests in the event of its subsequent birth.
The old timers who got this state underway had more sense than we moderns because they had better values. Early in the days of the Dakota Territory, early in our Statehood, they were concerned with the rights of the unborn. SDCL 30-27-2 provides that a guardian may be appointed for a child born or likely to be born. Therefore, can there be any doubt that our Legislature has recognized the rights of the unborn? Moreover, SDCL 22-17-6 makes it a crime to intentionally kill a human fetus. Then, in 1984, SDCL 21-5-1, the wrongful death statute, was amended by defining the word “person” to include “an unborn child.” Therefore, I cannot fathom how this trial judge could have summarily decided that this unborn child, Heather Wheel-don, was not a person within the meaning of the wrongful death statute. Believing that a wrongful death action can be maintained for an unborn child, I ponder if the mother can die and the child-fetus live, or the child-fetus die and the mother live, how can it be intelligently urged that there is but only one life? See Annot., Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d *380411 (1978); Cherken, Torts-Wrongful Death-Recovery for Wrongful Death of a Stillborn Fetus Examined, 21 Yill.L.Rev. 994 (1975-76); Vaillancourt v. Medical Center Hospital of Vermont, 139 Vt. 138, 425 A.2d 92 (1980).
Article VI, § 20, of the South Dakota Constitution provides:
All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.
“Clearly and unequivocably, our constitution directs that the courts of this state shall be open to the injured and oppressed. We are unable to view this constitutional mandate as a faint echo to be skirted or ignored.” Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419, 425 (S.D.1984). For the State of Ohio’s interpretation of a very similar constitutional provision regarding an unborn child, see Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959). There, the Supreme Court of Ohio granted protection of the law to the wrongful death of an unborn child; and further quoted an earlier decision, Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334 (1949), which approved of a cause of action for a prenatal injury to a child.
The trial court also erred by failing to give the plaintiffs’ requested instruction on informed consent. As the majority opinion concedes, plaintiffs’ requested instruction is based upon our ruling in Cunningham v. Yankton Clinic, P.A., 262 N.W.2d 508, 511 (S.D.1978), wherein this Court held:
A doctor has the duty to make a reasonable disclosure to his patient of the significant risks in view of the gravity of the patient’s condition, the probabilities of success, and any alternative treatment or procedures, if such are reasonably appropriate, so that the patient has the information reasonably necessary to form the basis of an intelligent and informed consent to the proposed treatment or procedure. (Emphasis supplied.)
Cunningham is the settled law of this state, see Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980), and the plaintiffs’ requested instruction clearly and succinctly states the applicable law. Note in plaintiffs’ requested instruction, that the words “any alternative treatment or procedures” are used just as in Cunningham and Al-berts. The trial court, however, refused the plaintiffs’ requested instruction and gave the instruction recited in the majority opinion. Note that in the instruction given by the trial court, that the phrase or words “any alternative treatment or procedures” are not recited. Further note that the words “reasonably appropriate” and “reasonably necessary” are not in the instruction given by the trial court. The trial court’s instruction diluted the holdings of Cunningham and Alberts.
A trial court’s refusal to give a requested instruction which sets forth the applicable law constitutes prejudicial error. See Van Zee v. Sioux Valley Hospital, 315 N.W.2d 489, 492 (S.D.1982); Ryken v. Blumer, 307 N.W.2d 865, 869 (S.D.1981); Wolf v. Graber, 303 N.W.2d 364, 366 (S.D.1981); and Miller v. Baken Park, Inc., 84 S.D. 624, 631, 175 N.W.2d 605, 609 (1970), modified, 85 S.D. 133, 178 N.W.2d 560 (1970).
Here, the trial court rejected a clear instruction on the settled and applicable law and in its place gave an instruction which the majority opinion has to interpret in order to uphold its application. The given instruction, however, fails to clearly outline a physician’s duty to inform of alternative procedures. Abstaining from suggested or further treatment or procedures is an alternative procedure of which physicians must inform their patients. This is evidenced by Dr. Madison’s actions after performing the bloody amniocentesis tap.
After performing the bloody amniocentesis tap, Dr. Madison sent the mother, Mrs. Wheeldon, home. He did not inform her that a fetal heart monitor machine could be utilized. He did not inform her that this could be done in his office or at the hospital. And he did not inform her that an immediate delivery could be per*381formed if the heart monitoring showed the child to be bleeding to death. This is dumbfounding as the Sioux Valley Hospital was just across the street. These were all additional alternative procedures to sending her home. These were alternative recommended procedures, of which Dr. Madison was aware through published medical literature, for the management of a bloody amniocentesis tap. Dr. Madison, however, failed to inform Mrs. Wheeldon of these alternative procedures and he (not the uninformed mother) elected to abstain from further medical procedures. Having lacerated the placenta attached to the child’s umbilical cord, he virtually did nothing. On September 8, 1982, when Dr. Madison obtained a bloody amniocentesis tap, he testified that he did not have in mind von Willdebrand’s Disease in the Wheeldon family history. This is amazing when one considers that the Wheeldons discussed this bleeding disorder with Dr. Madison and that he, Dr. Madison, knew this disease was a clotting disorder transmittable through heredity to both male and female offspring. This doctor knew that this disease would cause serious problems for the mother or an unborn child if not properly managed by a doctor. The failure to take alternative procedures, after the injection of the needle and the thrashing around of the child becomes even more amazing in view of the doctor’s statement that he “must have nicked the baby’s foot.” His failure to take alternative procedures became vividly clear for the testimony discloses that when the cesarean section was underway, blood splattered out on the floor of the hospital, and the doctor, and his assistants, knew that a blood vessel had been punctured by the needle and the child had simply bled to death.
A doctor has the duty to make a reasonable disclosure to his patient of any alternative treatment or procedures. Cunningham. This is the settled and applicable law of this state. Alberts. After performing a bloody amniocentesis tap, alternative procedures for the protection of the child were available, but Dr. Madison failed to so inform Mrs. Wheeldon. The plaintiffs’ requested instruction states the applicable law and is supported by the record. If given, the jury, most assuredly, might have, and probably would have, returned a different verdict. Thus, I would hold the trial court’s refusal to give plaintiffs’ requested instruction constituted prejudicial and reversible error.
Another grievous error which might have, and probably would have, affected the verdict in this case, was the granting by the trial court of Dr. Madison’s attorney’s motion to not permit the jury to have Exhibit 21 in the jury room. This was a rank ruling of major proportion. Exhibit 21 was a plastic anatomical model of a fetus, umbilical cord, and placenta. This was a helpful tool to the jury in its deliberations. It was marked as an exhibit during the opening statement. Then, during the course of the trial, it was received without qualification and the trial court stated “Exhibit 21 is received.” See Trial Transcript at page 145. Once received in evidence, without any objection by Dr. Madison’s attorneys, and there being testimony on the exhibit, it was an abuse of discretion and a monumental error in trial to keep the jury from having the exhibits available to them in their deliberation. In 35 years, in the trial bar, on the trial bench, and on the appellate court, I have never observed such a preposterous ruling. For this Court to approve of such evidentiary procedure, is incredulous.
Lastly, I wish to state that the time constraints are such, and the workload of this Court so heavy, that the burden restricts me from attacking paragraph after paragraph of obiter dicta in the majority opinion — dicta in the form of a law school treatise which is ungermane to the case at hand. See commentary of Henderson, J., on staggering growth of appeals in the South Dakota Supreme Court, in Interest of A.M.L., 371 N.W.2d 358, 360 (S.D.1985) (Henderson, J., concurring specially) at footnote.
I would therefore reverse and remand for a retrial.