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Guyer v. Hugo Publishing Co.11/26/1991
P.2d 535 (Okl. 1984). The undisputed facts show the miscarriage of a nonviable fetus.
In Evans, the Court allowed a negligence action to be brought on behalf of a surviving child that was negligently injured prior to its birth. Evans specifically overruled prior cases which did not allow such an action. The Court also noted in Evans, as we do here, that an action for wrongful death is a creature of statute and did not exist at common law. 12 O.S. 1981 ยง 1053 authorizes such an action and provides for the damages recoverable.
Prior to the decision of the Supreme Court in the Evans case, Oklahoma did not recognize nor allow a wrongful death action for wrongful death of an unborn child. The Evans Court limited its decision to actions involving a "viable unborn child", and did not change the previously existing law as to a previable fetus. Trial courts, and this Court, are bound by decisions of the Supreme Court. The trial court correctly held that an action for wrongful death of a previable fetus does not exist.
However, the above does not prevent the Guyer from maintaining an action for damages attributable to injuries suffered by them, or either of them. Injuries and resulting damages suffered by the mother are different from that suffered by the previable fetus. A cause of action by her clearly exists for her alleged injuries. Without limitation of items of possible recovery, and without expressing any opinion as to the merits of the action, we would point out that the mother's injuries, and resulting damages, include, but are not necessarily limited to temporary and permanent mental and physical injury , pain and suffering, and any medical expense for treatment of her injuries. For example, if she suffers, mentally or physically, from the miscarriage, then such injury is compensable. Loyd Guyer's action for loss of consortium is based on injuries to Geniva Guyer The causes of action properly being pursued by the Guyers should be judged by the general law on torts in the State of Oklahoma. Section 1053 does not apply to this case.
Appellant's three propositions are in the form of questions as follows:
PROPOSITION ONE
DOES A CAUSE OF ACTION EXIST FOR WRONGFUL DEATH OF A NONVIABLE UNBORN CHILD.
PROPOSITION TWO
DOES A CAUSE OF ACTION EXIST FOR INJURED MOTHER OF A PREVIABLE FETUS FOR INJURIES, LOSS OF CHILD, MEDICAL EXPENSES, PAIN, SUFFERING, AND EMOTIONAL DISTRESS AS A RESULT OF BEING NEGLIGENTLY INJURED.
PROPOSITION THREE
DOES A CAUSE OF ACTION EXIST FOR LOSS OF CONSORTIUM FOR THE SPOUSE OF INJURED MOTHER WHO EXPERIENCES PAIN AND SUFFERING WITH CONCOMITANT LOSS OF PRE-VIABLE FETUS AS A RESULT OF BEING NEGLIGENTLY INJURED.
Proposition one is answered in the negative; and, by changing the words "loss of child" to "a miscarriage", propositions two and three are answered in the affirmative. The judgment as to the action for wrongful death of a nonviable or previable fetus is affirmed. Otherwise, the judgment is reversed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings not inconsistent with this opinion.
BAILEY and ADAMS, JJ., concur.
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