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July 26, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. William C. Gardner, Trial Judge)

Before Steadman, Farrell and King, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge : In early 1989, following five unsuccessful pregnancies, Betty Ferguson again became pregnant. She went to the emergency room at D.C. General Hospital on June 12 and June 17, 1989, complaining of abdominal pain and cramps, and was treated on an outpatient basis. She returned to the hospital on June 18, 1989, with the same complaints. Approximately one-half hour after arriving at the hospital, a fetus weighing eleven ounces emerged from Ms. Ferguson. Upon emergence, *fn1 the fetus had a heartbeat and engaged in some form of respiratory effort. Within a short time, however, these functions ceased and the fetus died.

Ms. Ferguson brought this action in Superior Court against the District of Columbia ("the District") on behalf of the fetus under the local survival statute, D.C. Code § 12-101 (1989). *fn2 The complaint alleged that the employees of D.C. General Hospital, which is owned by the District, were negligent in failing to admit her to the hospital and in failing to provide the treatment necessary to prevent her fetus from emerging prematurely. *fn3 As legal representative of the fetus, Mrs. Ferguson sought recovery for the damages suffered by the fetus as a consequence of that negligence, including its death. The District moved for dismissal or in the alternative for summary judgment on the ground that the fetus was not viable and therefore had no cause of action under the survival statute. The trial court granted the motion for summary judgment. *fn4

Appellant presents two arguments in seeking reversal of the summary judgment: first, that because the fetus emerged alive, a cause of action existed under the survival statute regardless of whether or not the fetus was viable; second, to the extent that viability is relevant, the fetus's viability was a disputed issue of fact preventing the grant of summary judgment. We think existing case law mandates the rejection of both arguments on the record before us and accordingly we affirm the judgment.


We first address appellant's argument that because the fetus emerged alive a cause of action existed under the survival statute. In Greater Southeast Community Hosp. v. Williams, 482 A.2d 394 (D.C. 1984), this court traced at length the common law background and laid out the general principles operative in this jurisdiction with respect to the application of the survival statute to injuries inflicted upon an unborn fetus. We adopted the rationale of the landmark case of Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946), as the law of this jurisdiction, thus recognizing the right of a viable fetus, as an "independent person," to be free of prenatal tortious injury and to recover for injuries inflicted while viable. We concluded that since a viable fetus is a person with a right of action within the meaning of the survival statute, there is no difference; for purposes of liability, whether injuries inflicted upon the fetus subsequent to its becoming viable cause the death of the fetus just prior to or just after birth. In doing so, we specifically rejected the argument that live birth, rather than viability, should be the "logical line defining fetal rights." Williams, supra, 482 A.2d at 398. Thus, the statute was held applicable to a viable fetus that was stillborn as the result of the alleged malpractice.

We revisited this area of the law in Jones v. Howard University, 589 A.2d 419 (D.C. 1991). *fn5 In that case, a mother of twins was exposed to a diagnostic x-ray and surgery during her first trimester of pregnancy and sought damages for the mental distress and anxiety that she experienced over the potential injury to her unborn fetuses, claiming that the hospital and the doctors were negligent in failing to first ascertain that she was pregnant. *fn6 Applying our requirement that absent any physical injury a plaintiff must be within the "zone of physical danger" to recover for the negligent infliction of emotional distress, we concluded that the mother could recover if she showed that the radiation or surgical treatment presented a threat to her own health or that of the unborn twins. In doing so, we concluded that any injury to the non-viable twins was an injury to the mother herself:

We take the view that to authorize the mother to pursue, in her own right, claims for injury to a nonviable fetus represents a more orderly approach to the adjudication of such claims than does a requirement that such claims be pressed as wrongful death and survival claims.

Id. at 423. Thus, we established that during the period of non-viability, the cause of action pertained to the mother and not to the non-viable fetus. *fn7 Since, as Williams, supra, 482 A.2d at 395, demonstrated, a pre-existent cause of action is a sine qua non to the application of the survival statute, the statute necessarily could not apply while the fetus remained non-viable. *fn8

Appellant attempts to distinguish these cases by arguing that if a non-viable fetus is "born alive," which she asserts is the case here, that fact should be decisive for purposes of the survival statute. We think that this approach is foreclosed by the reasoning of Williams, where we expressly rejected live birth as the line in determining fetal rights. Just as a viable that is injured possesses rights under the survival statute whether death occurs prior to or subsequent to birth, like-wise, the existence of rights vel non of a non-viable fetus under the survival statute cannot turn on that happenstance either. *fn9 The concept underlying our survival statute is that the representative is merely bringing a lawsuit that decedent could have brought had he or she not died. Where the fetus emerges from the mother without the developmental capacity to survive, it would contradict the theory of a survival action to provide a cause of action to the representative of the fetus. Absent clear indication of contrary legislative intent, it would be anomalous to view an action as one that could have been brought by the fetus had the fetus not died when the fetus had never developed the capacity to survive in the first place. Indeed, the logic of viability rather than physical emergence of the fetus as the dividing line in interpreting the survival statute is inherent in the concept of viability itself, an issue to which we now turn in dealing with appellant's second argument.


Appellant argues that even if viability is the correct line in determining when a cause of action on behalf of the fetus exists under the survival statute, the question of whether the fetus here was "viable" was a disputed question of fact that precluded the grant of summary judgment.

Appellant argues that because the fetus was "born alive," that is, with a heartbeat, it was necessarily viable. Appellant's argument, however, is based upon a misunderstanding of the concept of "viability," at least for the purposes of the survival statute. In the Bonbrest case, which formed the basis for our jurisprudence in this area, the court stated that "the term 'viable' means that the foetus has reached such a stage of development that it can live outside of the uterus." Bonbrest, supra, 65 F. Supp. at 140 n.8; see also Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791, 2817 (1992) ("viability . . . is the time at which there is a reasonable possibility of maintaining and nourishing a life outside the womb") (opinion of O'Connor, Kennedy, and Souter, JJ.); Roe v. Wade, 410 U.S. 113, 160, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (viability is the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid"). Bonbrest demonstrates that the concept of viability relates to the capability of the fetus at its stage of development to survive apart from its mother. If viable, it "is capable now of being ushered into the visible world." Bonbrest, supra, 65 F. Supp. at 141 (emphasis in original). This concept of viability as encompassing the ability of the fetus at a particular stage of development to survive apart from the mother is reflected in the decisions of other courts. See, e.g., Libbee v. Permanente Clinic, 268 Ore. 258, 518 P.2d 636, 637 n.4 (Or. 1974) (en banc) ("'viable' unborn child is one which has developed in its mother's womb to the point that it is capable of independent existence outside its mother's womb"); ...

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