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52 UMKC L. Rev. 692 (1983-1984)
Wrongful Death: O'Grady v. Brown - Recovery for the Wrongful Death of a Viable Fetus in Missouri

handle is hein.journals/umkc52 and id is 702 raw text is: Wrongful Death: O'Grady v. Brown

RECOVERY FOR THE WRONGFUL DEATH OF A
VIABLE FETUS IN MISSOURI
INTRODUCTION
In O'Grady v. Brown, the Missouri Supreme Court held that the Missouri
Wrongful Death Statute' does provide a cause of action for the wrongful death
of a viable3 fetus. The court's opinion explicitly overruled State ex rel. Hardin
v. Sanders,4 where the court stated an action for the wrongful death of an
unborn fetus could not be maintained under the then existing wrongful death
statute.5
THE FACTS OF O'GRADY
Terry and Kevin O'Grady filed a petition in three counts with the Jackson
County Circuit Court, seeking recovery in Count I for personal injuries to
Terry O'Grady, in Count II for loss of consortium suffered by Kevin O'Grady,
and in Count III for damages suffered by both parents by reason of the wrong-
ful death of their unborn child.6 Terry O'Grady was nine months pregnant
when, due to the alleged negligence7 of the defendants,8 her fetus was delivered
stillborn. The trial court dismissed the O'Grady's wrongful death claim on the
authority of State ex rel. Hardin v. Sanders,9 which denied recovery for the
1. 654 S.W.2d 904 (Mo. 1983)(en banc).
2. Mo. REv. STAT. § 537.080 (1983 Supp.):
Whenever the death of a person results from any act, conduct, occurrence, transac-
tion, or circumstance which, if death had not ensued, would have entitled such person to
recover damages in respect thereof, the person or party who, or the corporation which,
would have been liable if death had not ensued shall be liable in an action for damages,
notwithstanding the death of the person injured, which damages may be sued for [by
certain classes of plaintiffs which are enumerated here.] Provided further that only one
action may be brought under this section against any one defendant for the death of any
one person.
3. A viable fetus is an unborn child which has developed in its mother's womb to the point
that it is capable of independent existence outside its mother's womb. BLACK's LAW DICTIONARY
1404 (5th ed. 1979). In Roe v. Wade, 410 U.S. 113, 160 (1973), the Court stated that [vliability is
usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.
4. 538 S.W.2d 336 (Mo. 1976)(en banc).
5. Mo. REV. STAT. § 537.080 (1969).
6. 654 S.W.2d at 906.
7. Id. Plaintiffs contend that Terry O'Grady was not properly monitored, observed, or treated
by the defendants. Failure to promptly deliver the child resulted in the rupturing of the mother's
uterus and the delivery of a stillborn child after a cesarean section was performed. The fetus was
alive at the time of the alleged negligence.
8. Id. The plaintiffs filed this medical malpractice suit against the mother's two treating phy-
sicians, an attending registered nurse and the hospital in which the events occurred.
9. 538 S.W.2d 336 (Mo. 1976).

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