No. 93-173
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
ALEXA M. STRZELCZYK, Individually,
and as Personal Representative
of the Estate of JOHN MATTHEW
STRZELCZYK, deceased: and ALEXA
M. STRZELCZYK as next friend of
JEREMIAH S. STRZELCZYK, and AMANDA
M . STRZELCZYK, minors,
Plaintiffs,
STANLEY JETT, M.D.,
Defendant.
APPEAL FROM: United States District Court
District of Montana, Great Falls Division
The Honorable Paul Hatfield, Judge presiding.
COUNSEL OF RECORD:
For Plaintiff:
John Iwen, Great Falls, Montana; Timothy J.
McKittrick, McKittrick Law Firm, Great Falls,
Montana
For Defendant:
Neil I.:. Ugrin & Nancy P. Cory, Ugrin, Alexander,
Zadick & Slovak, Great Falls, Montana
Certified Question Submitted: February 16, 1994
Decided: March 17, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court
This case is before the Court on Certified Question from the
United States District Court, District of Montana, Great Falls
Division. This Court heard oral arguments on February 16, 1994
concerning the following question:
Does the State of Montana recognize a claim of wrongful death
for a stillborn fetus?
Under the facts of this case, the answer is yes.
The facts of this case are not in dispute. At the time of the
delivery, Alexa Strzelczyk (Alexa) and Dr. Stanley Jett (Jett),
were both residents of the State of Montana residing in the Chinook
area. Dr. Jett was licensed to practice medicine in this state.
On or about June 12, 1989, Alexa visited Dr. Jett for the first
time and thereafter, became his patient.
Medical records show that Alexa's expected date of delivery
was January 7, 1990. Alexa was diagnosed as a diabetic during her
pregnancy, but medical records indicate that she controlled her
diabetes. The fetus maintained a normal heartbeat throughout the
pregnancy and as late as January 15, 1990, the heartbeat was normal
at 140. On January 17, 1990, an ultrasound was performed on Alexa
and it was determined at that time that the fetus had died. Dr.
Frank Miller was called in and delivered the stillborn fetus on
January 18, 1990, at Northern Montana Hospital, Havre, Montana.
Alexa filed an application with the Medical Malpractice Panel
pursuant to 5 27-6-701, MCA, against Dr. Jett on December 24, 1991.
A decision was rendered on July 14, 1992, determining that a cause
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of action existed. Subsequently, on August 11, 1992, Alexa filed
a complaint alleging malpractice against Dr. Jett. Dr. Jett
removed the action to federal district court on January 6, 1993,
because of diversity. Both Dr. Jett and Alexa now live in
different states.
United States Magistrate Robert M. Holter, heard oral argument
on the case and recommended that the matter be certified to the
Montana Supreme Court because of this Court's holding in Kuhnke v.
Fisher (1984), 210 Mont. 114, 683 P.2d 916. Kuhnke held that the
then existing wrongful death statutes did not support a claim for
wrongful death of a stillborn fetus. In view of the legislature's
subsequent revisions of the wrongful death statutes, and Judge
Holter's recommendation, Federal Judge Paul G. Hatfield certified
the question to this Court. Pursuant to Rule 44 of the Montana
Rulcs of Appellate Procedure, this Court accepted jurisdiction by
order dated April 15, 1993.
Does the State of Montana recognize a claim of wrongful death
for a stillborn fetus?
Dr. Jett filed a motion to strike that part of the amended
complaint which refers to the wrongful death action, arguing that
the Montana Court in Kuhnke would not recognize such a claim for a
stillborn fetus. On appeal, plaintiff argues that the Kuhnke case
was decided before the legislature modified the applicable wrongful
death statute. Following the Kuhnke decision, the legislature
changed the statute and according to plaintiff, a plain reading of
that statute in conjunction with other applicable statutes
indicates that a wrongful death claim for a stillborn fetus is
appropriate.
Dr. Jett contends that the legislature changed the statute
only to prohibit double recovery on claims. Further, Dr. Jett
argues that the Kuhnke case is still applicable because this Court
stated therein that any future recovery by a fetus must await a
statutory change by the legislature. Dr. Jett's assertion is that
although the legislature changed the wording of the statute it did
not provide wording that would allow recovery for a wrongful. death
action.
while it is true that Kuhnke held that no cause of action for
wrongful death will lie for a stillborn fetus, it did so based upon
the 1985 language in the wrongful death statute. We confine
ourselves to a comparative consideration of two versions of the
applicable statutes, the version of statutes reviewed by the Kuhnke
Court and the 1987 changes to those statutes which govern the case
before us.
At the time of the Kuhnke decision, Montana's wrongful death
statute stated:
section 27-1-512, MCA (1985). Action by parent or
guardian for injury to or death of child or ward. Either
parent may maintain an action for the injury or death of
a minor child and a guardian for injury or death of a
ward when such injury or death is caused by the wrongful
act or neglect of another. Such action may be maintained
against the person causing the injury or death or, if
such person be employed by another person who is
responsible for his conduct, also against such other
person. (Emphasis added.)
In 1387, this section was changed to read:
section 27-1-512, MCA (1987--1993). Action by parent or
guardian for injury to child or ward. Either parent may
maintain an action for the injury to a minor child and a
guardian for injury to a ward when such injury is caused
by the wrongful act or neglect of another. Such action
may be maintained against the person causing the injury
or, if such person be employed by another person who is
responsible for his conduct, also against such other
person. (Emphasis added.)
We note that "or death" has been excised from this statute. The
attendant statute previously read:
Section 27-1-513, MCA (1985). Action for wrongful death
of adult. When the death of one Derson, not beinq a
,-nr is caused by the wrongful act or neglect of
another, his heirs or personal representatives may
maintain an action for damages against the person causing
the death or, if such person be employed by another
person who is responsible for his conduct, then also
against such other person. (Emphasis added.)
In 1987, this section was also changed to read:
Section 27-1-513, MCA (1987-1993). Action for wrongful
death. When injuries to and the death of one lserson are
caused by the wrongful act or neglect of another, the
personal representative of the decedent's estate may
maintain an action for damages against the person causing
the death or, if such person be employed by another
person who is responsible for his conduct, then also
against such other person. (Emphasis added.)
Kuhnke interpreted the term "minor child" for purposes of a
wrongful death claim. We determined that a fetus was not a minor
child and could not, based upon this lack of connection, maintain
a cause of action for wrongful death. In 1987, 5 27-1-512, MCA,
dropped all language indicating an action for "death" of a minor
child; only injury was still included. Also, the 1987 changes to
g 27-1-513, MCA, dropped all distinction between minor and adult
and only specified "one person." Therefore, what we must interpret
is "person" not "minor child."
Considering the language in Kuhnke indicating that we must
wait for the legislature to change the law to permit an action for
wrongful death of stillborn fetus, we note that the legislature has
changed certain language in the wrongful death statute. It has not
placed the words "stillborn fetus" into the statute, but it remains
for us now to interpret who is a "person" for purposes of this
case. We will not read into statutes something that is not there.
State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 833
P.2d 201. Our function as an appeals court is to ascertain what
the legislature meant and to do that if possible, by looking to the
plain meaning of the words in the statute. State ex rel. Roberts
v. Public Service Com'n of the State of Montana (1990), 242 Mont.
242, 790 P.2d 489. Therefore, we will not consider the legislative
history of the changes made to these statutes if we can interpret
the statutes themselves without such a quest.
In our attempt to ascertain who all the legislature included
in the word "person" with the 1987 changes we look to another of
the legislature's own definitions of what constitutes an "unborn
child" :
A child conceived but not yet born is to be deemed an
existinq person, so far as may be necessary for its
interests in the event of its subsequent birth. (Emphasis
added. )
Section 41-1-103, MCA. The case before us presents us with a
healthy fetus until past its delivery date. It was a child
conceived, but not yet born. It was subsequently born, but not
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alive. Yet, the statute does not indicate that a live birth is
necessary for the child to be a "person." We decline to read the
word "live" into this statute.
The legislature could have very easily inserted the word
"live" in 1 41-1-103, MCA, just as it did in § 50-15-101(1), MCA:
"Fetal deathw means a birth after 20 weeks of gestation.
... that is not a live birth. (Emphasis added.)
We determine that the legislature knew that a birth could be live
or not live and it would have used the term "live birth" if that is
what the legislature meant. Therefore, we conclude the word
"birth" in § 41-1-103, MCA, means all forms of birth, including a
"still" birth.
Section 41-1-103, MCA, also contains the words "so far as may
be necessary for its interests." This phrase makes the
determination of whether a fetus is a person fact specific. It
indicates that each case must be considered carefully in order to
determine if the circumstances present make it "necessarym for the
fetus to be determined a person in order to protect some interest.
We conclude that according to the facts stated previously,
this full-term fetus should be considered a "person."
We hold that under the facts of this case the State of Montana
recognizes a claim of wrongful death for a stillborn fetus,
Justice Karla M. Gray, specially concurring.
I concur in the Court's opinion on this purely legal certified
question and in its straightforward analysis and interpretation of
the statute at issue and its application to the facts before us.
As a result of emotional and unsupported oral arguments made by
counsel for Dr. Jett, I specially concur here in order to address
briefly what this case is about.
This is not an abortion case or a case related in any way to
a woman's constitutional right to privacy and to an abortion under
Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147.
The termination of a pregnancy by abortion is an intentional,
consensual act by a woman and her physician which the law
specifically allows. The case before us, like virtually all
wrongful death actions, is based on an allegation that the
pregnancy was terminated by the wrongful act or omission of Dr.
Jett; that is, it is an action based in negligence.
Counsel's related, but ill-developed, arguments that
permitting a wrongful death action under these facts would somehow
criminalize abortion or conflict with Uniform Probate Code
provisions are equally unsupportable. Counsel cited no authority
whatsoever in support of her arguments that our holding in this
case would have the adverse and dire consequences she predicts.
Given the fact that at least 32 states allow a wrongful death
action under facts similar to those before us, counsel's total
failure to support the arguments advanced is notable, indeed. The
purpose or intent of such arguments can only be a matter of
speculation. Suffice it to say that the arguments were not
grounded in legal analyses or interpretation.
Justice Terry N. Trieweiler and Justice James C. Nelson join
in the foregoing special concurrence of Justice Karla M. Gray.