KEELE v ST VINCENT HOSPITAL
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NO. 92-121 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1993 LOIS Y. KEELE and FRANK S. KEELE, individually, and as next friends of their minor child, LISA KEELE, Plaintiffs and Appellants, -vsST. VINCENT HOSPITAL AND HEALTH CARE CENTER, and DR. JAMES R. HARRIS, M.D., Defendants APPEAL FROM: and Respondents. District Court of the Thirteenth Judicial District. In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding. COUNSELOF RECORD: For Appellants: William Lynaugh, Montana P. Fitzgerald (argued for appellant): Fitzgerald, Eiselein & Eakin, Billings, For Respondents: Richard F. Cebull (argued for respondent Dr. Harris) John J. Russell: Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, Montana Robert C. Brown (argued for respondent St. Vincent Hospital): Poore, Roth & Robinson, Butte, Montana For Amicus: W. William Leaphart (argued on behalf of Trial Lawyers Association); Leaphart Law Firm, Helena, Montana Randy J. Cox (filed brief on behalf of Montana Defense Trial Lawyers): Boone, Karlberg & Haddon, Missoula, Montana Submitted: Decided: February 4, 1993 May 6, 1993 Justice M. Gray Karla Appellant Lisa Judicial District for loss of sole Keele parental The delivered issue action for suffered motion Harlem in (Frank), was and in active immediately St. labor. This that 15, the Vincent's, began the Dr. considered parent the to of have by 491, She was ward fetus in James Lois in of complaint. Frank Keele Health Center pregnant examined Lois the a high Harris, City 38 weeks nurses was the and a Therefore, husband, Hospital of well-pleaded 493. from her grant Mogan v. true. 739 P.2d 1985. treating claim cause the M.R.Civ.P., results delivery. child's following Vincent condition section a minor us The obstetrical determined position." cesarean on December her and remand. to our discussion St. Thirteenth a quadriplegic. accompanied to the her 437, relevant admitted Vincent's) are 435, (Lois), or Court. dismissing requires 12(b)(6), complaint facts Keele County, before Rule 227 Mont. the Lois under of whether him is the an order consortium appeal of We reverse is rendering the (1987), we distill (St. of parental to dismiss allegations Yellowstone on appeal this Opinion from consortium. an injury Because appeals Court, loss the and "transverse lie likelihood of an obstetrician according to a at established procedure. Anesthesiologists St. Vincent's. Hospital anesthesiologists after the were on an "on-call" procedure thirty initial available required minutes call. to Dr. 2 arrive Harris the at staff the did basis to only allow operating not call at the room an anesthesiologist Lois' when he became aware of the water was required required broke, to preserve immediate anesthesiologist Dr. Harris began, and an immediate the health but the abdominal or general In surgery distress fact that the to prepare anesthesia section Fetal of the fetus. had not been called a local position. Code I cesarean notwithstanding action, administered fetal Lois an proceeded cutting without and Frank surgery. surgical before for a spinal Keele block anesthesia. November of malpractice filed a separate 1991, Lois Lois against action 1988, St. action and Frank against Dr. Harris daughter Keele, as a plaintiff. plaintiffs and St. the child Vincent's timely section on anesthesia Lois Keele. October, 1991, consolidating Lisa alleged Keele their the traumatic before they On September injury of the defendants services 1989, and adding born during due to the negligence a medical April, complaint, The amended complaint obtain in Dr. James Harris. amended their cases against Lisa Vincent's: filed claimed the minor delivery, to all in performing 27, three failing to the of loss cesarean parental consortium. In dismiss Rule Lisa's 12(b)(6), District Court claim Dr. for loss M.R.Civ.P. ordered Harris entry and St. of parental After consortium briefing of judgment Vincent's and oral against moved to pursuant to argument, the Lisa Keele. Lisa loss of Keele appeals. Does a minor child's cause of 3 action for parental consortium him require or her for Mont. parent to have suffered bases her an Lisa 521, loss Keele of (Lisa) parental 813 P.2d recognized a consortium against consortium child's quadriplegic. 429. In a on Pence, cause 813 of 813 P.2d at Respondents Pence at had 433. intended Harris must to set consortium be a claims permanent and Lisa to Montana. She unit case, even cases improperly instead, relationship in we of loss injured we a these rights of parental by a third held: on Pence should by the the on tortfeasor. 4 the quadriplegia. a policy of to Pence that injury damage action was the to to in enforcing of cause in the parental relationship asserts of of a severe, established policy holding nature focus to loss suffers broad Court of loss limit parent Court Lisa this the for similar covers that that parent-child this specific the to the the that in contend boundary Court this quadriplegia. caused 248 father case and injury, Pence, the court a parental the Vincent's which foster espoused focus the in contends involving this physical and though of that enforceable cases that support (1991), loss interpreted, urge disabling protect, has impression, rendered In St. strictly They argues and reasonable, claims. consortium Fox first for she 433. Dr. decision familial rendering that v. of action who P.2d Pence a case tortfeasor Pence, argument [Mlinor children who have been deprived have a separate cause of action for consortium when a parent is tortiously party and rendered a quadriplegic. Pence, injury a quadriplegic? Appellant claim the the the in this limited respondents the parent: parent-child to The District our holding claim on Court and based its specific the recognized Pence, in correctly language recognized repeatedly continued development loss of parental quadriplegic; whose in a lifelong loss of parental We noted parental least in Pence the consortium ten states Vermont, Washington, Oklahoma and jurisdictions Virginia Board 830 and Nulle (Wyo. 1990), We have jurisdictions example, society for children injury brain eliminated parental of the cause of action trend the to recognize of that time Iowa, Pence, 813 the at of v. Goins of decision, at Alaska, Massachusetts, 431. cause v. Gillette-Campbell loss Arizona, Michigan, P.2d See Belcher Additional action include (W.Va. County Joint 1990), West 400 Powers Fire 797 P.2d 1171. surveyed and exclude thee claim: Wisconsin, and Wyoming. S.E.2d At now recognizing the are rendered severe totally growing recognized Texas. have in Montana is appropriate. actions. had a development consortium we 813 P.2d at whose parents example, further Lisa's the cause of action would of for See Pence, limiting coma which Therefore, dismiss However, arbitrarily for nature and responsibility to children suffered, consortium. for a result parents resulting Berger basis to therein. authority consortium such decision of the common law. We see no rational 431. for our the limited the discovered in Michigan, a child and companionship v. Weber (Mich. approaches a wide range can recover when the parent 1981), employed for is of loss these standards. For of the parent's tortiously 303 N.W.2d 424, 427. 5 in injured. In Bercfer, the Michigan Supreme Court instances of "severely" Beraer, 303 N.W.2d at 427. At Vermont Supreme Court has limited has been action to which the Medical parent Center We also to, Hosp. have the claims in sister Court's rationale in 1989), 774 P.2d 213. necessarily a cause reflect of action rely on the our definition In legal of Montana, establish inherent for v. facts from the of action loss of facts parental the elements Dept. us nor of of as in Pence. In consortium Arizona of of the action, in Supreme Transp. (Ariz. Villareal facts Supreme do not required consortium. Arizona for Instead, Court to we guide Montana. necessary parental the 946. relating of parental the analysis for loss State before cause opinion heavily of policies cause in Hay v. 939, this to that loss 496 A.2d the cases comatose. and our We note the to of child. spectrum, action public in, be applied Villareal the a claim 1985), important we borrow of the permanently (Vt. cause of a minor end of cause the limit parents other the the to Montana, the jurisdictions standard to injured Vermont interests by our crafting of refused rendered revisited and competing expressed expressly for a consortium minor child to are: 1) a third party tortiously causes the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent's ultimate impairment must be so causes the parent-child nearly destroyed. See Villareal, The first which must 774 P.2d element be present at condition overwhelming relationship 219. describes to of mental or physical and severe that it to be destroyed or form the the 6 extent basis of for injury a loss to the of parent parental consortium claim, Thereafter, the injury as element to the parent limitation claim loss derivative derivative parent's claim recovery See discussion for is limited in Day v. child's is wholly for to liability sustain of parental 313, 671 P.2d severe mental 583; Versland to a cause consortium. could from the tortfeasor or emotional injury an action loss v. 686 P.2d 209. absent for absent instances Markets, if consortium the child resulting 206 Inc. the parent his or her purely component, 195, (1983), Consequently, a physical of parental 242 Mont. Supersave for physical in Montana. v. Caron Transport and Johnson 465, not recover injury Montana Power Co. (1990), (1984) I 211 Mont. mental cannot from that to the parent. We find derivative stated support for 227 Mont 370, (1987), the The tortfeasor cannot loss minor claim the to a few specific 199, 789 P.2d 1224, 1226-7: injury That the child for described 774 P.2d at 220. manifestations bring the is not subject principles, injury. the of against the tortfeasor the tortfeasor For example, Mont. that under Montana law." nature the if of a limitation: consortium. against Villareal, source parental under tort of action contains the injuries: the parent the of of personal as must be "compensable reflects for well nature that loss the injured this 740 P.2d 648. of a spouse's although of spousal spouse's conclusion in Priest In Priest, claim for loss v. Taylor we discussed of consortium. the cause of action is separate completely derivative We and distinct, consortium the claim. claim Priest, 7 is 740 P.2d at 653. of In Pence, we relied heavily our decision on our recognition to recognize parental consortium. conclude that parental consortium this of spousal consortium the cause of action Pence, limitation 813 P.2d on a minor is both necessary for at to support a child's 431-2. child's of As such, claim and grounded loss for we loss of in Montana case law. With parental regard parent's of the See Belcher, whether Lisa is itself, We conclude, dismissing her complaint that a necessary not merely the a factor in however, for that failure or in computing of near of the the damages. 774 P.2d at 219-20. and sustain standard the loss establishing us, we express the for as a result element allege under claim destruction at 841, and Villareal, to the case before consortium of the relationship can appropriately parental opinion. as to a claim set District to state no opinion for loss forth in this Court erred a claim in upon which can be granted. Reversed this parent-child 400 S.E.2d Returning second element we emphasize impairment cause of action relief the consortium, destruction of to opinion. We concur: and remanded for further proceedings consistent with Justices 3 Justice Terry N. Trieweiler I concur with the whether with the standard result has a cause nature of damage the brought is child. of to loss When we recognized of by majority the opinion, majority action for but for loss disagree determining of his or her action is consortium. The loss concurring. of the established a child parent's specially a parent's the for which the right consortium, consortium between relationship a the a child to make a claim of we pointed out parent and the for that: [T]he rights of the child to support, aid, protection, affection and society of the parent derive from both statute and case law. 40-6-211, 40-6-214, 55 41-3-102(3)(c)[, MCA]; IiZrefig (1988), 231Mont. 78, 751 P.2d 171. In addition, the child has the right to parental discipline, guidance and training. . . . . . . . We conclude that under the Montana case law and minor children are entitled to the statutes as developed, support, aid, protection, affection, society, discipline, guidance and training of their parent. This policy underlies the "best interests of the child test" in custody determinations under § 40-4-212, MCA, and the right of the child to seek damages under Montana's Wrongful Death Statute. See §§ 27-1-512 and 513, MCA, and Ewalt[v.Scott (1983)], 206 Mont. 503, 675 P.2d 77. Pencev.Fox (1991), If the compensated or her arbitrarily standard 248 Mont. nature is parent, of the damage to the it makes limited which 521, gives by rise 526-27, loss the of cause 10 a the of the 432-33. is the child cause of parent's action 429, child between to me that nature to which relationship no sense the for 813 P.2d to and his action injury. should be logically is The be based on the nature and extent of the damage to the parent-child relationship. It is limitation interesting on the when it results that right from of (l-61, 223 Mont. dispute that most cases relationship Mont. 442, (D. Mont. disruption have much between observation from of P.2d the greater two there injury 1961), lost to 1981), and quoted 311 N.W.2d consortium another spouse. 71; Dutton 214 F. Supp. Supp. 671; should parent-child relationship consequences than damage I with the adults. agree 298; Bain v. Gleason there be no will in to the following The Child s Right to Suefor Loss of a Parent s Love, Care and CompanionshipCausedby TortiorrsInjury to the Parent, 5 6 B . u . L. (19761, similar 200 F. Supp. And yet, 1153. no 1963), F. 266 is recover Mont. (D. 1967), 726 to or mental v. Hightower and Lubrecht Construction Co. Hall v. United States (D. Montana one spouse physical SeeDufiv.Lipsman-Fulkerson&Co. in by 259, the Iowa Supreme Court in Rev. 7 2 2, Weitlv.Moes 269: Since the child in his formative years requires emotional nurture to develop properly, the loss of love, care and companionship is likely to have a more severe effect on him than on an adult: and society has a strong interest in seeing that the child's emotional development proceeds along healthy lines. Moreover, an adult is in a better position than a child to adjust to the loss of a family member's love, care and companionship through his own resources. He is capable of developing new relationships in the hope of replacing some of the emotional warmth of which he has been deprived. A child, however, is relatively powerless to initiate new relationships that might mitigate the effect of his deprivation. Legal redress may be the child's only means of mitigating the effect of his loss. 11 74 2 (Iowa Because the the purpose of relationship his claim of the parent's established for loss of has an independent a third party so as to parent-child of cause a parent other than result action follow held set forth in majority a nature test in that loss tortiously that for the that for disruption of the no limit weid, 311 N.W.2d in the those of a significant is on the I would who is child's by an adult based it for the arbitrarily when cause relationship." I concur Therefore, not is there brought injury. Court to because consortium Supreme Iowa and would parental majority damage action I the by reasons of by the for parent, or mental and companionship for her physical "a minor the a child consortium, society of recognized on a cause a spouse's child's action or limitation of state of compensating with comparable loss cause of the injured by or diminution at 270. opinion, but opinion. 3 stice / Justice William E. Bunt, Sr., concurrence. 12 joins in theforegoing special May 7, 1993 CERTIFICATE OF SERVICE I herebycertify that the following order was sentby United Statesmail, prepaid,to the following named: William P. Fitzgerald LYNBAUGH, FITZGERALD, EISELEIN & EAKIN P.O. Box 1729 Billings, MT 59103 JohnJ. Russell& RichardF. Cebull ANDERSON, BROWN LAW FIRM P.O. Box 849 Billings, MT 59103 Robert C. Brown POORE,ROTH & ROBINSON 1341HarrisonAvenue Butte, MT 59701 W. William Leaphart LeaphartLaw Firm One North Last Chance Gulch Helena,MT 59601 RandyJ. Cox Boone,Karlberg& Hadden P.O. Box 9199 Missoula.MT 59807-9199 ED SMITH CLERK OF THE SUPREMECOURT STATEOF MONTANA
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