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