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Court Permits Expert Testimony Regarding Fetal Pain & Suffering Claims

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In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses or, in the alternative a motion for a Frye hearing.  The case involved a medical malpractice action surrounding the stillbirth of twins at 33.4 weeks gestational age.  Plaintiffs alleged that the defendants negligently failed to diagnosis and treat preecelampsia, and as a result plaintiff-mother suffered an eclamptic seizure causing her to develop placental abruption that resulted in the demise of the twin fetuses.  The plaintiff-mother suffered hypovolemic shock, tachycardia and massive hemorrhaging requiring her to undergo an emergency hysterectomy and left salpingo-ophorectomy. 

The plaintiff-mother asserted a cause of action under the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Act, 42 Pa.C.S. § 8302.  Plaintiffs produced an expert report from a board-certified specialist in neonatal and perinatal medicine who opined that a “fetus at 33 weeks gestational age [is] able to experience pain and suffering from the effects of asphyxia, i.e., abnormal gas exchanges, as would an older infant, child or adult as well as from the effects of short-term starvation.” Id. at 3.  He further opined that the pain suffered by the twins before their death was implicitly severe and significant.  Id. 

The defendants filed a motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses based on Frye v. United States,[2] and Pa.R.C.P. 207.1.  The defendants alleged that plaintiffs’ expert opinions related to pain and suffering of in-utero fetuses due to death by asphyxiation are not supported by and documented by scientific authority other than his own subjective belief.  Page v. Moses Taylor Hospital, at 4. 

The Court discussed Amadio v. Levin,[3] where the Supreme Court expressly extended to a dead child the right to institute a survival and wrongful death action for injuries suffered in utero. The fetus must be viable at the time of the fatal harm in order to assert a claim under the Wrongful Death and Survival Acts. Page v. Moses Taylor Hospital, at 9. The Supreme Court of the United States and the Superior Court of Pennsylvania have held that viability occurs at 23-24 weeks gestation.  Id. at 14. 

Furthermore, plaintiffs’ expert cited an article from The New England Journal of Medicine which reviewed and cited more than two-hundred studies and publications addressing pain perception of neonates as well as other related topics.  Defendants’ experts failed to submit any contrary medical literature to support their Frye motion and only offered their own conflicting expert opinion.  The Court found that there was scientific support for the conclusion that “viable fetuses at 33 weeks gestation have the cortical, subcortical and neurochemical capacity for conscious perception of pain.”  Id. at 15.

Ultimately, the Court found that plaintiffs’ expert opinion was supported by scientific authority, and therefore, did not require a Frye hearing.  The motion in limine to preclude plaintiffs’ expert testimony was denied and the Court determined that it was an issue for the jury to determine the weight accorded to plaintiffs’ expert opinion. 

[1] Page v. Moses Taylor Hospital, et al., 2016 Pa. Ct. Comm. Pl. (unpublished opinion) (May 6, 2016).

[2] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[3] Amadio v. Levin, 509 Pa. 199, 208, 501 A.2d 1085, 1089 (1985).  

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