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Ladu v. Oregon Clinic3/1/2000
En Banc
Appeal from Circuit Court, Multnomah County.
Henry Kantor, Judge.
Argued and submitted September 14, 1999; resubmitted en banc January 26, 2000.
Affirmed.
De Muniz, J., concurring.
Plaintiff LaDu, in her capacity as personal representative of the estate of Baby LaDu, appeals the trial court's order and judgment dismissing with prejudice her claim against defendants for the wrongful death of a nonviable 16-week-old fetus. The trial court granted defendants' motion to dismiss plaintiff's claim for failure to state a claim. ORCP 21 A(8). On appeal, plaintiff asserts that the trial court erred in dismissing her claim, arguing that a 16-week-old fetus is a "person" for purposes of Oregon's wrongful death statute. ORS 30.020. For the following reasons, we conclude that the trial court correctly determined that plaintiff failed to state a claim on behalf of the nonviable fetus under the wrongful death statute.
In reviewing the dismissal of a complaint for failure to state a claim, we assume the truth of all allegations, as well as any reasonably related inferences, and view them in the light most favorable to the nonmoving party. Granewich v. Harding, 329 Or 47, 51, 985 P2d 788 (1999). Plaintiff alleged that, in June 1997, after experiencing pelvic pain, she had a CT scan at the Oregon Clinic that was interpreted by a radiologist, Dr. Eselius. As a result of that CT scan, plaintiff was referred to Dr. Yu and diagnosed with a new onset pelvic mass. Shortly thereafter, plaintiff underwent exploratory surgery with a total abdominal hysterectomy for removal of the presumed tumor. After surgery, plaintiff was told that the mass in her pelvis had not been cancer but had been a 16-week-old fetus. The hysterectomy terminated plaintiff's pregnancy.
Plaintiff initiated this action against Eselius, Yu, and the Oregon Clinic on behalf of herself (medical negligence) and as personal representative of the estate of the fetus (wrongful death). Defendants moved to dismiss plaintiff's claim for the wrongful death of the fetus on the ground that it failed to state a claim. ORCP 21 A(8). The trial court granted defendants' motions and entered a partial judgment pursuant to ORCP 67 B on plaintiff's wrongful death claim. Plaintiff's remaining claim for medical negligence is not at issue in this appeal.
The parties' arguments center on whether a 16-week-old fetus may be considered a "person" for purposes of Oregon's wrongful death statute, ORS 30.020(1), which provides:
"When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission."
In analyzing a statute, we start with its text, read in context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Generally, we give words of common usage their plain, natural and ordinary meaning. Id. We look also to the context of the statutory provision at issue, which includes other provisions of the same statute and other related statutes, id. at 6
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