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May 25, 1990.

BRENDA HUMES and BENNIE HUMES, Appellees/Cross-appellants,
DALE L. CLINTON, M.D.; DALE L. CLINTON, M.D., P.A.; Appellants/Cross-appellees, and ALZA CORPORATION, Appellant.

The opinion of the court was delivered by

This is a medical malpractice and products liability case brought by Brenda and Bennie Humes on behalf of their nonviable fetus, as heirs at law of the fetus, and individually against Dale L. Clinton, M.D., and ALZA Corporation. Appellants Clinton and ALZA Corporation have perfected an interlocutory appeal of the district court's ruling denying them summary judgment on appellees Humes' claim for wrongful death, pain and suffering, strict liability, and negligence per se. Appellees Humes cross-appeal the district court ruling granting summary judgment to Dr. Clinton on Brenda Humes' claim for emotional and physical injuries resulting from a previous abortion.

In reviewing a summary judgment, we must consider the record in the light most favorable to the party against whom summary judgment was entered. Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); Johnston v. Elkins, 241 Kan. 407, 736 P.2d 935 (1987). The district court found the following facts uncontroverted or most favorable to the Humes:

  1. Defendant ALZA Corporation (ALZA) is the manufacturer of an intrauterine contraceptive device (IUD) known as the Progestasert Intrauterine Progesterone Contraceptive System (IPCS). The IPCS is a T-shaped IUD with progesterone (a female hormone) in the vertical stem which is released over time. The IPCS is inserted by a physician into the patient's uterus for purposes of contraception.

  2. The IPCS is approved by the Food and Drug Administration (FDA) for use for 12 months, with replacement recommended

[246 Kan. 592]

      after that time. The physician information sheet prepared by ALZA states that the physician "should" provide the patient the patient information sheet and discuss with the patient the use of the IPCS. The physician information sheet and patient information sheet provide notice that pregnancy can occur with use of the IPCS and that for continued protection the system must be replaced after twelve months of use because the "contraceptive effectiveness of the system is retained for one year."

  3. Brenda Humes had an IPCS inserted by Dr. Clinton on June 4, 1985.

  4. Even though Dr. Clinton knew the IPCS was recommended for replacement after one year, he did not inform Brenda Humes of this nor did he give the patient information sheet prepared by ALZA to her.

  5. Instead, Dr. Clinton gave Brenda Humes an information sheet prepared by himself. This written material included language that "pregnancies are rare" and that the IUD "should be changed about every 15 months." Another sheet of information prepared by Dr. Clinton and given to Brenda Humes instructed her to replace the IUD before 16 months because the "progesterone runs out by this time."

  6. Dr. Clinton told Brenda Humes that none of his patients had ever gotten pregnant while using the IPCS and that she would not get pregnant using the IPCS for at least fifteen months.

  7. Dr. Clinton admitted that ALZA informed him pregnancy could occur with the IPCS.

  8. Brenda Humes followed the advice of Dr. Clinton concerning the length of time she could use the IUD for contraception. On or about August 6, 1986, or fourteen months after Brenda Humes had had the IUD inserted, she became pregnant. Her pregnancy was confirmed on September 6, 1986, by Henry Buck, M.D.

  9. Brenda Humes' pregnancy was complicated by the presence of the IPCS, which exposed her to increased risk of infection, spontaneous abortion, septic shock, and death.

  10. Brenda Humes suffered pain and bleeding throughout the term of her pregnancy with the IUD in place.

  11. For strong medical considerations, Dr. Buck recommended that Brenda Humes terminate her pregnancy.

[246 Kan. 593]


  12. On November 4, 1986, after being advised on numerous occasions that there were substantial life-threatening risks in continuing the pregnancy, Brenda Humes underwent a therapeutic abortion. The fetus was sixteen and one-half weeks and could not have survived outside the mother's body at that time. Thus, the fetus was nonviable.

  13. Since the abortion, Brenda Humes has suffered continued physical and psychological distress. She is presently diagnosed as suffering from pelvic inflammatory disease, post-traumatic stress disorder, and post-abortion syndrome.

  Additional facts will be presented where pertinent to a proper explanation of the case.

  The first issue we consider is whether the district court erred in ruling that Brenda and Bennie Humes could maintain wrongful death and survival actions on behalf of an unborn, nonviable fetus. Dr. Clinton and ALZA contend these actions are not proper as a matter of law because no cause of action may be brought on behalf of an unborn, nonviable fetus.

  Under this state's wrongful death statute, the personal representative of a person killed by the wrongful act or omission of another may maintain an action for damages resulting from the negligent act if the decedent might have maintained the action had he or she lived. K.S.A. 60-1901. Thus, our ultimate inquiry is whether an unborn, nonviable fetus is a "person" within the meaning of the wrongful death statute.

  At common law, the courts> did not recognize a right of action for prenatal personal injuries. Scott v. McPheeters, 33 Cal.App.2d 629, 635, 92 P.2d 678. In 1884, Justice Holmes, speaking for the Supreme Judicial Court of Massachusetts, held that a child en ventre sa mere had no jurisdictional existence; that is, the unborn fetus was so intimately united with its mother that no separate right of action could accrue to the unborn fetus. Dietrich v. Northampton, 138 Mass. 14 (1884). The Dietrich holding remained substantially unchallenged until 1946, when a United States District Court allowed recovery for a child born alive who had sustained prenatal injuries while viable. Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946). Minnesota was the first state to allow a wrongful death action on behalf of a stillborn child who

[246 Kan. 594]

      sustained injuries while viable. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949).

  Following the Verkennes decision, other states began to adopt the view that a wrongful death action would lie when an independent life in being was negligently injured by the wrongful act of another; however, these early cases usually limited recovery to children who survived birth. Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912 (1960); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964); Simmons v. Weisenthal, 29 Pa. D. & C. 2d 54 (1962); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960).

  More recently, some courts> have expressed a view that an action may be maintained for prenatal injuries negligently inflicted at any stage of gestation, provided the child is born alive. Group Health Ass'n v. Blumenthal, 295 Md. 104, 117-19, 453 A.2d 1198 (1983); Annot., 40 A.L.R.3d 1222, 1230 § 3[a]. In such cases, it is reasoned that viability — the ability to live independently of the mother — is an irrelevant demarcation when a child survives prenatal injuries and is born with damages suffered within the womb. Other courts> reason it is incongruous to recognize an unborn fetus as alive and capable of inheriting, but to reject it as capable of sustaining personal injuries. Wolfe v. Isbell, 291 Ala. 327, 332, 280 So.2d 758 (1973); Tucker v. Carmichael & Sons Inc., 208 Ga. 201, 204, 65 S.E.2d 909 (1951); Bennett v. Hymers, 101 N.H. 483, 485, 147 A.2d 108 (1958).

  A majority of states allow an action for wrongful death of a viable fetus even when it is stillborn as a result of the prenatal injuries. Kansas adopted this rule in Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962). In Hale, a pregnant woman involved in an automobile accident gave birth several days after the accident and delivered a "perfectly formed male child" that did not survive birth. 189 Kan. at 144. The court found that on the date of the alleged negligent act the child was viable and ruled that an action for wrongful death could be maintained. 189 Kan. at 146-47.

  The Hale opinion, like other jurisdictions where actions are maintainable for stillborn children, limits recovery to those fetuses which are viable when injured. The Hale court relied upon an Ohio case for support (Williams v. Transit, Inc., 152 Ohio St. ...

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