NO. 92-121
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1993
LOIS Y. KEELE and FRANK S. KEELE,
individually, and as next friends of
their minor child, LISA KEELE,
Plaintiffs and Appellants,
-vs-
ST. VINCENT HOSPITAL AND HEALTH CARE CENTER,
and DR. JAMES R. HARRIS, M.D.,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District.
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSELOF RECORD:
For Appellants:
William P. Fitzgerald (argued for appellant):
Lynaugh, Fitzgerald, Eiselein & Eakin, Billings,
Montana
For Respondents:
Richard F. Cebull (argued for respondent Dr.
Harris) John J. Russell: Brown, Gerbase, Cebull,
Fulton, Harman & Ross, Billings, Montana
Robert C. Brown (argued for respondent St. Vincent
Hospital): Poore, Roth & Robinson, Butte, Montana
For Amicus:
W. William Leaphart (argued on behalf of Trial
Lawyers Association); Leaphart Law Firm, Helena,
Montana
Randy J. Cox (filed brief on behalf of Montana
Defense Trial Lawyers): Boone, Karlberg & Haddon,
Missoula, Montana
Submitted: February 4, 1993
Decided: May 6, 1993
Justice Karla M. Gray delivered the Opinion of the Court.
Appellant Lisa Keele appeals from an order of the Thirteenth
Judicial District Court, Yellowstone County, dismissing her claim
for loss of parental consortium. We reverse and remand.
The sole issue on appeal is whether a minor child's cause of
action for loss of parental consortium requires the parent to have
suffered an injury rendering him or her a quadriplegic.
Because this appeal is before us following the grant of a
motion to dismiss under Rule 12(b)(6), M.R.Civ.P., the well-pleaded
allegations in the complaint are considered true. Mogan v. City of
Harlem (1987), 227 Mont. 435, 437, 739 P.2d 491, 493. Therefore,
we distill the facts relevant to our discussion from the complaint.
Lois Keele (Lois), accompanied by her husband, Frank Keele
(Frank), was admitted to St. Vincent Hospital and Health Center
(St. Vincent's) on December 15, 1985. She was 38 weeks pregnant
and in active labor. The obstetrical ward nurses examined Lois and
immediately determined that the fetus was in the "transverse lie
position." This condition results in a high likelihood of a
cesarean section delivery. Dr. James Harris, an obstetrician at
St. Vincent's, began treating Lois according to established
procedure.
Anesthesiologists were available on an "on-call" basis only at
St. Vincent's. Hospital procedure required the staff to allow the
anesthesiologists thirty minutes to arrive at the operating room
after the initial call. Dr. Harris did not call an
2
anesthesiologist when he became aware of the fetal position.
Lois' water broke, and an immediate Code I cesarean section
was required to preserve the health of the fetus. Fetal distress
required immediate action, notwithstanding the fact that an
anesthesiologist had not been called to prepare Lois for surgery.
Dr. Harris administered a local anesthesia before surgical cutting
began, but the abdominal surgery proceeded without a spinal block
or general anesthesia.
In November of 1988, Lois and Frank Keele filed a medical
malpractice action against St. Vincent's: in April, 1989, they
filed a separate action against Dr. James Harris. On September 27,
1991, Lois and Frank amended their complaint, consolidating the
cases against Dr. Harris and St. Vincent's and adding their minor
daughter Lisa Keele, the child born during the traumatic delivery,
as a plaintiff. The amended complaint alleged injury to all three
plaintiffs due to the negligence of the defendants in failing to
obtain timely anesthesia services before performing the cesarean
section on Lois Keele. Lisa Keele claimed loss of parental
consortium.
In October, 1991, Dr. Harris and St. Vincent's moved to
dismiss Lisa's claim for loss of parental consortium pursuant to
Rule 12(b)(6), M.R.Civ.P. After briefing and oral argument, the
District Court ordered entry of judgment against Lisa Keele. Lisa
Keele appeals.
Does a minor child's cause of action for loss of parental
3
consortium require the parent to have suffered an injury rendering
him or her a quadriplegic?
Appellant Lisa Keele (Lisa) bases her argument that she has a
claim for loss of parental consortium on Pence v. Fox (1991), 248
Mont. 521, 813 P.2d 429. In Pence, a case of first impression, we
recognized a child's cause of action for loss of parental
consortium against a tortfeasor who had rendered the father a
quadriplegic. Pence, 813 P.2d at 433. In that case we held:
[Mlinor children who have been deprived of these rights
have a separate cause of action for loss of parental
consortium when a parent is tortiously injured by a third
party and rendered a quadriplegic.
Pence, 813 P.2d at 433.
Respondents Dr. Harris and St. Vincent's contend that the
Pence decision must be strictly interpreted, and that this Court
intended to set a reasonable, enforceable boundary for loss of
consortium claims. They urge this Court to limit loss of parental
consortium claims to cases in which the parent suffers a severe,
permanent and disabling physical injury, similar to quadriplegia.
Lisa argues that in Pence, this Court established a policy to
protect, support and foster the parent-child relationship in
Montana. She contends that this broad policy of enforcing the
familial unit espoused in Pence covers the cause of action in this
case, even though the specific holding in Pence was limited to
cases involving quadriplegia. Lisa asserts that the respondents
improperly focus on the nature of the injury to the parent:
instead, the court should focus on the damage to the parent-child
relationship caused by the tortfeasor.
4
The District Court correctly recognized the limited nature of
our holding in Pence, and based its decision to dismiss Lisa's
claim on the specific language therein. However, we have
recognized repeatedly our authority and responsibility for the
continued development of the common law. See Pence, 813 P.2d at
431. We see no rational basis for limiting the cause of action for
loss of parental consortium to children whose parents are rendered
quadriplegic; such a result arbitrarily would exclude children
whose parents suffered, for example, a severe brain injury
resulting in a lifelong coma which totally eliminated parental
consortium. Therefore, further development of the cause of action
for loss of parental consortium in Montana is appropriate.
We noted in Pence the growing trend to recognize loss of
parental consortium actions. At the time of that decision, at
least ten states had recognized thee claim: Arizona, Alaska,
Vermont, Washington, Wisconsin, Iowa, Michigan, Massachusetts,
Oklahoma and Texas. Pence, 813 P.2d at 431. Additional
jurisdictions now recognizing the cause of action include West
Virginia and Wyoming. See Belcher v. Goins (W.Va. 1990), 400
S.E.2d 830 and Nulle v. Gillette-Campbell County Joint Powers Fire
Board (Wyo. 1990), 797 P.2d 1171.
We have surveyed the approaches employed in these
jurisdictions and discovered a wide range of standards. For
example, in Michigan, a child can recover for loss of the parent's
society and companionship when the parent is tortiously injured.
Berger v. Weber (Mich. 1981), 303 N.W.2d 424, 427. In Bercfer, the
5
Michigan Supreme Court expressly refused to limit the cause of
action to instances of "severely" injured parents of a minor child.
Beraer, 303 N.W.2d at 427. At the other end of the spectrum, the
Vermont Supreme Court has limited the cause of action to cases in
which the parent has been rendered permanently comatose. Hay v.
Medical Center Hosp. of Vermont (Vt. 1985), 496 A.2d 939, 946.
We also have revisited the important public policies relating
to, and competing interests inherent in, this cause of action, as
expressed by our sister jurisdictions and our opinion in Pence. In
crafting the standard to be applied to loss of parental consortium
claims in Montana, we borrow heavily from the Arizona Supreme
Court's rationale in Villareal v. State Dept. of Transp. (Ariz.
1989), 774 P.2d 213. We note that the facts of Villareal do not
necessarily reflect the facts before us nor the facts required for
a cause of action for loss of parental consortium. Instead, we
rely on the legal analysis of the Arizona Supreme Court to guide
our definition of the cause of action in Montana.
In Montana, the elements necessary for a minor child to
establish a claim for loss of parental consortium are:
1) a third party tortiously causes the parent to suffer
a serious, permanent and disabling mental or physical
injury compensable under Montana law; and
2) the parent's ultimate condition of mental or physical
impairment must be so overwhelming and severe that it
causes the parent-child relationship to be destroyed or
nearly destroyed.
See Villareal, 774 P.2d at 219.
The first element describes the extent of injury to the parent
which must be present to form the basis for a loss of parental
6
consortium claim, as well as the source of that injury.
Thereafter, the element contains a limitation: the described
injury to the parent must be "compensable under Montana law." The
limitation reflects the derivative nature of the minor child's
claim for loss of parental consortium. That claim is wholly
derivative of the parent's claim against the tortfeasor for
personal injuries: if the tortfeasor is not subject to liability to
the parent under tort principles, the child cannot sustain a cause
of action against the tortfeasor for loss of parental consortium.
Villareal, 774 P.2d at 220.
For example, recovery for severe mental injury absent physical
manifestations is limited to a few specific instances in Montana.
See discussion in Day v. Montana Power Co. (1990), 242 Mont. 195,
199, 789 P.2d 1224, 1226-7: Versland v. Caron Transport (1983), 206
Mont. 313, 671 P.2d 583; and Johnson v. Supersave Markets, Inc.
(1984) I 211 Mont. 465, 686 P.2d 209. Consequently, if the parent
could not recover from the tortfeasor for his or her purely mental
or emotional injury absent a physical component, the child cannot
bring an action for loss of parental consortium resulting from that
injury to the parent.
We find support for this conclusion in Priest v. Taylor
(1987), 227 Mont 370, 740 P.2d 648. In Priest, we discussed the
derivative nature of a spouse's claim for loss of consortium. We
stated that although the cause of action is separate and distinct,
the loss of spousal consortium claim is completely derivative of
the injured spouse's claim. Priest, 740 P.2d at 653. In Pence, we
7
relied heavily on our recognition of spousal consortium to support
our decision to recognize the cause of action for a child's loss of
parental consortium. Pence, 813 P.2d at 431-2. As such, we
conclude that this limitation on a minor child's claim for loss of
parental consortium is both necessary and grounded in Montana case
law.
With regard to the second element of the claim for loss of
parental consortium, we emphasize that the destruction or near
destruction of the parent-child relationship as a result of the
parent's impairment is a necessary element in establishing the
cause of action itself, not merely a factor in computing damages.
See Belcher, 400 S.E.2d at 841, and Villareal, 774 P.2d at 219-20.
Returning to the case before us, we express no opinion as to
whether Lisa can appropriately allege and sustain a claim for loss
of parental consortium under the standard set forth in this
opinion. We conclude, however, that the District Court erred in
dismissing her complaint for failure to state a claim upon which
relief can be granted.
Reversed and remanded for further proceedings consistent with
this opinion.
We concur:
Justices
3
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion, but disagree
with the standard established by the majority for determining
whether a child has a cause of action for loss of his or her
parent's consortium.
The nature of the loss for which a consortium action is
brought is damage to the relationship between the parent and the
child. When we recognized the right of a child to make a claim for
loss of a parent's consortium, we pointed out that:
[T]he rights of the child to support, aid, protection,
affection and society of the parent derive from both
statute and case law. 55 40-6-211, 40-6-214,
41-3-102(3)(c)[, MCA]; IiZrefig (1988), 231Mont. 78, 751
P.2d 171. In addition, the child has the right to
parental discipline, guidance and training. . . .
. . . .
We conclude that under the Montana case law and
statutes as developed, minor children are entitled to the
support, aid, protection, affection, society, discipline,
guidance and training of their parent. This policy
underlies the "best interests of the child test" in
custody determinations under § 40-4-212, MCA, and the
right of the child to seek damages under Montana's
Wrongful Death Statute. See §§ 27-1-512 and 513, MCA,
and Ewalt[v.Scott (1983)], 206 Mont. 503, 675 P.2d 77.
Pencev.Fox (1991), 248 Mont. 521, 526-27, 813 P.2d 429, 432-33.
If the nature of the loss for which a child is to be
compensated is damage to the relationship between the child and his
or her parent, it makes no sense to me that the cause of action is
arbitrarily limited by the nature of the parent's injury. The
standard which gives rise to the cause of action should logically
10
be based on the nature and extent of the damage to the parent-child
relationship.
It is interesting that in Montana there is no similar
limitation on the right of one spouse to recover lost consortium
when it results from physical or mental injury to another spouse.
SeeDufiv.Lipsman-Fulkerson&Co. (D. Mont. 1961), 200 F. Supp. 71; Dutton
v. Hightower and Lubrecht Construction Co. (D. Mont. 1963), 214 F. Supp. 298;
Hall v. United States (D. Mont. 1967), 266 F. Supp. 671; Bain v. Gleason
(l-61, 223 Mont. 442, 726 P.2d 1153. And yet, there should be no
dispute that disruption of the parent-child relationship will in
most cases have much greater consequences than damage to the
relationship between two adults. I agree with the following
observation from The Child’s Right to Suefor Loss of a Parent’s Love, Care and
CompanionshipCausedby TortiorrsInjury to the Parent, 5 6 B . u . L. Rev. 7 2 2, 74 2
(19761, and quoted by the Iowa Supreme Court in Weitlv.Moes (Iowa
1981), 311 N.W.2d 259, 269:
Since the child in his formative years requires emotional
nurture to develop properly, the loss of love, care and
companionship is likely to have a more severe effect on
him than on an adult: and society has a strong interest
in seeing that the child's emotional development proceeds
along healthy lines. Moreover, an adult is in a better
position than a child to adjust to the loss of a family
member's love, care and companionship through his own
resources. He is capable of developing new relationships
in the hope of replacing some of the emotional warmth of
which he has been deprived. A child, however, is
relatively powerless to initiate new relationships that
might mitigate the effect of his deprivation. Legal
redress may be the child's only means of mitigating the
effect of his loss.
11
Because the cause of action recognized by the majority is for
the purpose of compensating a child for damage to the child's
relationship with his or her parent, and because there is no
comparable limitation on a cause of action brought by an adult for
loss of a spouse's consortium, I would not arbitrarily limit a
child's claim for loss of parental consortium based on the nature
of the parent's physical or mental injury. I would follow the test
established by the Iowa Supreme Court when it held that in that
state "a minor has an independent cause of action for loss of the
society and companionship of a parent who is tortiously injured by
a third party so as to cause a significant disruption or diminution
of the parent-child relationship." weid, 311 N.W.2d at 270.
Therefore, I concur in the result of the majority opinion, but
for reasons other than those set forth in that opinion.
3 stice
/
Justice William E. Bunt, Sr., joins in theforegoing special
concurrence.
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May 7, 1993
CERTIFICATE OF SERVICE
I herebycertify that the following order was sentby United Statesmail, prepaid,to the following
named:
William P. Fitzgerald
LYNBAUGH, FITZGERALD, EISELEIN & EAKIN
P.O. Box 1729
Billings, MT 59103
JohnJ. Russell& RichardF. Cebull
ANDERSON, BROWN LAW FIRM
P.O. Box 849
Billings, MT 59103
Robert C. Brown
POORE,ROTH & ROBINSON
1341HarrisonAvenue
Butte, MT 59701
W. William Leaphart
LeaphartLaw Firm
One North Last ChanceGulch
Helena,MT 59601
RandyJ. Cox
Boone,Karlberg& Hadden
P.O. Box 9199
Missoula.MT 59807-9199
ED SMITH
CLERK OF THE SUPREMECOURT
STATEOF MONTANA
Keele Ex Rel. Kelle v. St. Vincent Hospital & Health Care
Court: Montana Supreme Court
Date filed: 1993-05-06
Citations: 852 P.2d 574, 258 Mont. 158, 50 State Rptr. 475
Copy Citations