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Breece v. Lugo12/18/2003
FOR PUBLICATION
STATEMENT OF THE CASE
Plaintiffs-Appellants James Breece ("James") and Geneva Breece ("Geneva") (collectively, "the Breeces"), both individually and on behalf of their daughter, Alicia Marie Breece ("Alicia"), appeal the trial court's grant of partial summary judgment in favor of Defendants-Appellees Stephen D. Lugo, M.D. ("Lugo"), St. John's Health System ("St. John's"), Madison County Imaging, P.C., Sara Y. Shull, M.D. ("Shull"), and Connie D. Harrill, M.D. ("Harrill") (collectively, "Healthcare Providers").
We affirm in part and reverse in part.
ISSUES
The Breeces raise two issues for our review, which we restate as:
I. Whether the trial court erred in determining as a matter of law that Indiana does not recognize a cause of action for the in utero death of a fetus and that the Medical Malpractice Act does not create a separate cause of action for child wrongful death.
II. Whether the trial court erred in determining as a matter of law that the Breeces do not have a claim for negligent infliction of emotional distress arising from the fetal demise of their daughter.
STATEMENT OF THE FACTS
On October 3, 1996, Geneva, who was pregnant with twins at an approximate gestational age of 36 " weeks, arrived at St. John's for medical assistance. At the time Geneva arrived at St. John's, she was experiencing contractions every six minutes. An ultrasound was conducted, and it was determined that there was only one fetal heartbeat. An emergency caesarian section was performed, which resulted in the delivery of one healthy baby and one deceased fetus. The Breeces named the decedent "Alicia."
On June 20, 1997, the Breeces, individually and on behalf of Alicia, filed a proposed complaint for damages with the Indiana Department of Insurance against the Healthcare Providers. Among other things, the proposed complaint alleged that the carelessness and negligence of each of the Healthcare Providers was a direct and proximate cause of Geneva's physical injuries and Alicia's in utero death. The proposed complaint also alleged that both James and Geneva suffered damages, including emotional distress, as a direct result of the Healthcare Providers' negligence.
The Healthcare Providers responded by filing motions for a preliminary determination of law and for a partial summary judgment, asking the trial court to determine as a matter of law that the Child Wrongful Death Act precluded the Breeces from bringing an action for the wrongful death of Alicia. The Healthcare Providers subsequently filed a motion asking the trial court to determine that Indiana law precluded James and Geneva from recovering for any emotional distress damages caused by that death. The Healthcare Providers acknowledged that Geneva could bring a negligence action for her own physical injuries.
After a hearing, the trial court granted partial summary judgment in favor of the Healthcare Providers. The trial court determined as a matter of law that the Breeces cannot recover under the Child Wrongful Death Act and that they cannot recover for any negligent infliction of emotional distress arising from Alicia's in utero death. The trial court further determined that Geneva may proceed with her medical malpractice action "only as to injuries she alleges occurred to her as a result of the allegedly negligent acts or omissions identified in the Amended Proposed Complaint." Appellants' App. at 15.
The Breeces now appeal.
DISCUSSION AND DECISION
STANDARD OF REVIEW
Here, the trial court made findings of fact and conclusions of law in f
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