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Strzelczyk v. Jett3/17/1994
, 51 St.Rep. 206
Certified Question Submitted February 16, 1994.
This case is before the Court on Certified Question from the United States District Court, District of Montana, Great Falls Division. This Court heard oral arguments on February 16, 1994 concerning the following question:
Does the State of Montana recognize a claim of wrongful death for a stillborn fetus?
Under the facts of this case, the answer is yes.
The facts of this case are not in dispute. At the time of the delivery, Alexa Strzelczyk (Alexa) and Dr. Stanley Jett (Jett), were both residents of the State of Montana residing in the Chinook area. Dr. Jett was licensed to practice medicine in this state. On or about June 12, 1989, Alexa visited Dr. Jett for the first time and thereafter, became his patient.
Medical records show that Alexa's expected date of delivery was January 7, 1990. Alexa was diagnosed as a diabetic during her pregnancy, but medical records indicate that she controlled her diabetes. The fetus maintained a normal heartbeat throughout the pregnancy and as late as January 15, 1990, the heartbeat was normal at 140. On January 17, 1990, an ultrasound was performed on Alexa and it was determined at that time that the fetus had died. Dr. Frank Miller was called in and delivered the stillborn fetus on January 18, 1990, at Northern Montana Hospital, Havre, Montana.
Alexa filed an application with the Medical Malpractice Panel pursuant to ยง 27-6-701, MCA, against Dr. Jett on December 24, 1991. A decision was rendered on July 14, 1992, determining that a cause of action existed. Subsequently, on August 11, 1992, Alexa filed a complaint alleging malpractice against Dr. Jett. Dr. Jett removed the action to federal district court on January 6, 1993, because of diversity. Both Dr. Jett and Alexa now live in different states.
United States Magistrate Robert M. Holter, heard oral argument on the case and recommended that the matter be certified to the Montana Supreme Court because of this Court's holding in Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916. Kuhnke held that the then existing wrongful death statutes did not support a claim for wrongful death of a stillborn fetus. In view of the legislature's subsequent revisions of the wrongful death statutes, and Judge Holter's recommendation, Federal Judge Paul G. Hatfield certified the question to this Court. Pursuant to Rule 44 of the Montana Rules of Appellate Procedure, this Court accepted jurisdiction by order dated April 15, 1993.
Does the State of Montana recognize a claim of wrongful death for a stillborn fetus?
Dr. Jett filed a motion to strike that part of the amended complaint which refers to the wrongful death action, arguing that the Montana Court in Kuhnke would not recognize such a claim for a stillborn fetus. On appeal, plaintiff argues that the Kuhnke case was decided before the legislature modified the applicable wrongful death statute. Following the Kuhnke decision, the legislature changed the statute and according to plaintiff, a plain reading of that statute in conjunction with other applicable statutes indicates that a wrongful death claim for a stillborn fetus is appropriate.
Dr. Jett contends that the legislature changed the statute only to prohibit double recovery on claims. Further, Dr. Jett argues that the Kuhnke case is still applicable because this Court stated therein that any future recovery by a fetus must await a statutory change by the legislature. Dr. Jett's assertion is that although the legislature changed the wording of the statute it did not provide wording that would allow recovery for
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