Oregon Court of Appeals Reports

12-27-2006) Kelly CHRISTIANSEN, Conservator for James
Carrier, a Minor, Appellant, v. PROVIDENCE HEALTH System of
Oregon Corporation, dba St. Vincent Hospital & Medical
Center, an Oregon business; and Randi R. Ledbetter, M.D.,
Respondents. 0301-00634; A122603. Oregon Court of
Appeals. Argued and submitted March 10, 2006. Filed:
December 27, 2006.

Appeal from Circuit Court, Multnomah County. Nely L.
Johnson, Judge.

Kathryn H. Clarke argued the cause for appellant. With her
on the brief was John E. Uffelman.

Michael T. Stone argued the cause and filed the joint brief
for respondent Providence Health System of Oregon Corp.,
dba St. Vincent Hospital & Medical. Lindsey H. Hughes
argued the cause and filed the joint brief for respondent
Randi R. Ledbetter.

Before EDMONDS, Presiding Judge, and LINDER, Judge, and
BARRON, Judge pro tempore.[fn*]

[fn*] Barron, J. pro tempore, vice Wollheim, J.


BARRON, Judge pro tempore.

Plaintiff Kelly Christiansen, the mother and conservator of
the estate of her minor child, James Carrier, appeals from
a judgment dismissing her medical negligence action on the
ground that it was barred by the ultimate repose provision
of ORS 12.110(4). Plaintiff argues that the application of
that provision to her claims violates the remedy clause,
Article I, section 10, of the Oregon Constitution. For the
reasons set forth below, we affirm the trial court’s

In reviewing a grant of a motion to dismiss, we assume the
truth of all allegations in the complaint, as well as any
inferences that may be drawn, and view them in the light
most favorable to the nonmoving party. Barke v. Maeyens,
176 Or App 471, 473, 31 P3d 113 (2001), rev den, 333 Or 655
(2002). The complaint alleges that defendants, a hospital
and an obstetrician, failed to recognize signs of fetal
distress and maternal infection during plaintiff’s labor on
March 14, 1994, and, as a result, negligently delayed
performing a cesarean section delivery of the child.
Immediately after delivery, the child was “floppy and
unresponsive,” “required neonatal resuscitation[,] and
suffered his first seizure within eight hours of his
birth.” He was discharged approximately one week later; at
that time, his “physicians stated that a cranial ultrasound
and CT Scan of the brain did not show any evidence of
abnormality. An EEG taken then was mildly abnormal, but not

Approximately three months after the child’s birth, Dr.
James R. Schimschock of the Child Neurology Clinic told
plaintiff that the child had been “developing normally” and
gave him a “good prognosis.” On or about May 11, 1999, Dr.
Schimschock “noted that [the child] had seemed to make his
motor landmarks at appropriate intervals” but diagnosed
mixed developmental disorder, developmental speech or
language disorder, and partial epilepsy. Dr. Schimschock
referred the child to Dr. Jay Edwards for further
evaluation. Dr. Edwards examined the child on June 2, 1999,
and noted that the child “reached his early developmental
milestones, but was beginning to show signs of neurological
deficits, relating to an anoxic event in-utero.”

Although plaintiff alleged that she was generally aware of
the course of events leading up to the cesarean section,
she did not allege that she knew that the child was “floppy
and unresponsive” after birth, that he needed neonatal
resuscitation, or that he had a seizure within eight hours
of the cesarean section delivery.[fn1] Within six to eight
months after delivery, plaintiff “suspected that there may
have been negligence in the medical care provided” during
the labor and delivery, “but at the time there were no
known permanent injuries to” the child. Plaintiff contends
that she did not learn of the child’s permanent injuries
until May 11, 1999, when Dr. Schimschock diagnosed the
child as having several neurological disorders.

Plaintiff filed this action against defendants in January
2003, more than five years after the child’s birth on March
14, 1994, but less than five years after she allegedly
discovered the existence and nature of his injuries in May
1999. In lieu of filing an answer, defendants moved to
dismiss the complaint, pursuant to ORCP 21 A(9),[fn2] as
barred by either the statute of limitations (because the
complaint alleges that plaintiff “suspected * * *
negligence” six to eight months after the delivery) or by
the statute of ultimate repose. See ORS 12.110(4).[fn3]
Plaintiff contended that the suit was filed less than five
years after she discovered the child’s injuries, as
required by ORS 12.160,[fn4] and that application of ORS
12.110(4) to her claims violates Article I, section 10, of
the Oregon Constitution (the remedy clause).[fn5] The trial
court dismissed the complaint with prejudice, ruling that it
was barred by ORS 12.110(4) and holding that ORS 12.110(4)
is not unconstitutional by reason of violating Article I,
section 10, of the Oregon Constitution.

We first address defendants’ subconstitutional argument
that plaintiff’s claims are barred by the two-year statute
of limitations, ORS 12.110(4), for claims based on medical
negligence. See Ainsworth v. SAIF, 202 Or App 708, 711-13,
124 P3d 616 (2005), rev den, 341 Or 216 (2006) (explaining
that courts must consider subconstitutional arguments
before reaching constitutional questions). Defendants
contend that the allegation that, within six to eight
months after the child’s birth, plaintiff “suspected that
there may have been negligence in the medical care provided
to [her]” during the birth can be construed to mean only
that she knew or should have known of facts that would make
a reasonable person aware of the substantial possibility of
the allegedly tortious conduct.[fn6] We disagree. Construing
the complaint in the light most favorable to plaintiff, as
we must, Barke, 176 Or App at 473, we conclude that
plaintiff merely “suspected” tortious conduct within six to
eight months after the child’s birth and that she did not
discover the child’s injuries for purposes of the statute
of limitations until May 1999. The existence of such a
suspicion will not start the statute of limitations
running. See Gaston v. Parsons, 318 Or 247, 256, 864 P2d
1319 (1994) (holding that a statute of limitations will not
begin to run if a plaintiff has only a “mere suspicion” of
legal injury, but it will begin to run if the plaintiff was
or should have been aware of a “substantial possibility” of
legal injury). Accordingly, under ORS 12.160, plaintiff had
until five years from May 1999 within which to bring the
claim. As noted, however, under ORS 12.110(4), the statute
of ultimate repose, notwithstanding ORS 12.160, every
action must be commenced within five years of the date of
treatment. In this case, the statute of ultimate repose bars
plaintiff’s claim because it was not brought within five
years of March 14, 1994.

We must next consider whether application of the statute of
ultimate repose violates the constitutional guarantees of
the remedy clause. Although both this court and the Oregon
Supreme Court have previously upheld statutes of ultimate
repose against remedy clause challenges, see Johnson v.
Star Machinery Co., 270 Or 694, 530 P2d 53 (1974); Josephs
v. Burns & Bear, 260 Or 493, 491 P2d 203 (1971); Davis v.
Whiting Corporation, 66 Or App 541, 674 P2d 1194, rev den,
297 Or 82 (1984), including ORS 12.110(4), Jones v. Salem
Hospital, 93 Or App 252, 762 P2d 303 (1988), rev den, 307
Or 514 (1989), we have not squarely addressed the issue in
the light of Smothers v. Gresham Transfer, Inc., 332 Or 83,
23 P3d 333 (2001).[fn7]

The Smothers court adopted an analysis that evaluates a
challenged statute in terms of the purpose the drafters of
the Oregon Constitution had in adopting the remedy clause:
to preserve absolute common-law rights respecting person,
property, and reputation that existed when the constitution
was adopted in 1857.

“[T]he first question is whether the plaintiff has
alleged an injury to one of the absolute rights that
Article I, section 10 protects. Stated differently, when
the drafters wrote the Oregon Constitution in 1857, did
the common law of Oregon recognize a cause of action for
the alleged injury? If the answer to that question is
yes, and if the legislature has abolished the common-law
cause of action for injury to rights that are protected by
the remedy clause, then the second question is whether it
has provided a constitutionally adequate substitute remedy
for the common-law cause of action for that injury.”

332 Or at 124. Because we decide that ORS 12.110(4), as
applied to the claim before the court, does not abolish a
common-law cause of action that existed in 1857, we answer
“no” to the first question posed by Smothers and,
therefore, need not address the second question.

Under Lawson v. Hoke, 339 Or 253, 259, 119 P3d 210 (2005),
we are enjoined to identify the circumstances of the case
that are pertinent to the inquiry of whether the common law
recognized a claim. See Smothers, 332 Or at 129 (framing
the relevant inquiry as “whether, at common law in Oregon
in 1857, an employee would have had a cause of action
against an employer for failure to provide a safe workplace
and failure to warn of dangerous working conditions”); see
also Juarez v. Windsor Rock Products, Inc., 341 Or 160, 144
P3d 211 (2006) (considering whether the remedy clause
protected a loss of consortium claim brought by a parent
and adult children of a person who was killed as the result
of the negligence of the person’s employer); Lawson, 339 Or
at 259-60 (examining not only whether the right to recover
noneconomic damages resulting from an accident on a public
road caused by another’s negligence existed in 1857, but
also whether, at that time, such a remedy could have been
conditioned on whether the injured driver was licensed to
be at the place where her injury occurred).

There is no dispute that a cause of action for medical
negligence existed in 1857. See, e.g., Langford v. Jones,
18 Or 307, 22 P 1064 (1890).[fn8] Plaintiff’s claim is
brought on behalf of her minor child for prenatal injuries
that she claims were caused by medical negligence. The
question, therefore, in this case is whether a claim for
prenatal injuries caused by medical negligence was
recognized by the common law of Oregon, or any other
jurisdiction, around the time the Oregon Constitution was
adopted. Defendants cite Dietrich v. Northampton, 138 Mass
14, 1884 WL 4976 (1884), the first American case to
consider whether an infant could recover for prenatal
injuries negligently inflicted. In addressing the issue,
Justice Oliver Wendell Holmes, writing for the court
stated, “But no case, so far as we know, has ever decided
that, if the infant survived [an accident or injury that
befell the mother], it could maintain an action for
injuries received by it while in its mother’s womb.” Id. at
15; see also Allaire v. St. Luke’s Hospital, 184 Ill 359,
368, 56 NE 638 (1900) (“[S]o far as we have been able to
discover, [the legal fiction that an unborn child may be
regarded as in esse for some purposes] has not been indulged
in by the courts of common law to the extent of allowing an
action by an infant for injuries occasioned before its
birth.”).[fn9] Given that case law, we must agree with
defendants that no such cause of action existed in 1857.

In the years immediately surrounding the adoption of the
Oregon Constitution, no Oregon case addressed whether an
infant injured during birth could maintain an action for
medical negligence against the delivering physician. The
Smothers court has instructed that, where Oregon courts
were silent in the years surrounding the creation of the
Oregon Constitution, the state of the common law in 1857 may
be ascertained from other sources, including cases from
other jurisdictions. 322 Or at 129. Cases from other
jurisdictions decided after the adoption of the Oregon
Constitution — and for more than the next 60 years
— followed Dietrich, despite the strong dissent in
Allaire. See Roland F. Chase, Annotation, Liability for
Prenatal Injuries, 40 ALR 3d 1222, § 2[a] (1971)
(noting that Dietrich “set the tone of judicial opinion for
the next 60 years” and that “courts were nearly unanimous
in rejecting a right of action for prenatal injuries”). But
see id. at § 2[a] n 10 (citing a handful of cases
decided during the 1920s expressing the view that an infant
could maintain an action for injuries it received as a
viable fetus). Although Dietrich, which involved a
nonviable fetus, arguably left open the question of whether
a viable fetus might maintain an action for prenatal
injuries, see Williams v. Marion Rapid Transit, Inc., 152
Ohio St 114, 119, 87 NE2d 334 (1949), the vast majority of
cases decided over the next 60 years — 90 years
after the adoption of the Oregon Constitution —
failed to draw a distinction between viable and nonviable
fetuses and, almost without exception, rejected the
existence of a cause of action in tort for prenatal
injuries. See, e.g., Allaire, 184 Ill at 368 (“That a child
before birth is, in fact, a part of the mother, and is only
severed from her at birth, cannot, we think, be
successfully disputed.”); see also 40 ALR 3d 1222 §
1[a] n 5, § 2[a] (defining “prenatal,” in accordance
with case law, to include injuries resulting from birth
trauma and noting that “[f]inally, in 1946 a United States
District Court [in Bonbrest v. Kotz, 65 F Supp 138 (DCDC
1946)] squarely held that injuries to a viable unborn child
are compensable in a tort action brought by the child after
its birth”).[fn10]

The first Oregon case to consider the question, Mallison
v. Pomeroy, 205 Or 690, 291 P2d 225 (1955), was decided
nearly a century after the adoption of the Oregon
Constitution. That fact significantly detracts from the
weight the case should be given in a Smothers analysis,
because Mallison was not decided “within a relatively short
period after 1857.” Smothers, 322 Or at 129. Plaintiff
nevertheless argues that Mallison supports the existence of
such a cause of action because the court suggested that a
viable fetus should be considered a “person” protected by
the remedy clause, 205 Or at 697 (citing Williams, 152 Ohio
St at 128-29[fn11]), and favorably cited cases relying on
common-law sources such as Blackstone and Lord Coke to
support the existence of common-law rights of an unborn
viable fetus. Id. at 694-97.

Regardless of whether we believe that Dietrich was wrongly
decided, and regardless of whether we agree with the
reasoning of Mallison, we cannot say that, in 1857, Oregon
courts would have recognized a common-law cause of action
under the circumstances of this case.[fn12] The weight of
authority suggests otherwise,[fn13] and the Mallison court
acknowledged several facts that appear to settle the
debate. First, although Mallison implied that viable fetuses
should be considered “persons” under the remedy clause, and
thus be allowed to sue for prenatal injuries, the case it
cited in support of that proposition, Williams, explicitly
acknowledged that the notion that an “infant is a part of
the mother until birth and has no existence in law until
that time” was a “time-worn fiction.” 152 Ohio St at 129
(emphasis added). That observation suggests that the
drafters of the Oregon Constitution did not intend to
include fetuses, viable or not, within the protections of
the remedy clause because it was generally accepted at that
time that, for the purposes of tort law, an infant was part
of the mother until the moment of its birth.[fn14]

Second, Dietrich is “[t]he mother case in this country”
regarding whether a fetus may seek damages for injuries
suffered while in its mother’s womb. Mallison, 205 Or at
691. That is significant because Justice Holmes relied
heavily on the utter lack of precedent recognizing such a
cause of action to conclude that the common law afforded no
remedy to the injured infant.[fn15] Although the Mallison
court cited several sources criticizing Dietrich’s reliance
on lack of precedent because “`a more accurate statement *
* * would have been that there was no English authority on
either side of the question,'” Mallison, 205 Or at 693-94
(quoting Amann v. Faidy, 415 Ill 422, 429, 114 NE2d 415,
416 (1953), which overruled Allaire and, in effect, adopted
the reasoning of Judge Boggs’s dissent), and thus “`[t]here
is nothing in the common law denying such a right to the
child,'” id., 205 Or at 695 (quoting Tucker v. Howard L.
Carmichael & Sons, Inc., 208 Ga 201, 206, 65 SE2d 910
(1951)), those criticisms do not undermine our analysis.
Smothers requires us to consider whether the right to
maintain the common-law cause of action at issue was “`well
established prior to the enactment of our Constitution.'”
332 Or at 116 (quoting Stewart v. Houk et al., 127 Or 589,
591, 271 P 998, on reh’g, 127 Or 589, 272 P 893 (1928))
(emphasis added). The fact that a cause of action was not
foreclosed by the common law does not demonstrate that it
was well established, and in fact suggests the opposite
— a question cannot be answered before it is asked.
See Allaire, 184 Ill at 367 (“While it is true that [a lack
of precedent] is not conclusive that the action may not be
maintained, yet, in view of the fact that * * * similar
circumstances must have before occurred, it is entitled to
great weight, especially when the right to maintain the
action is, to say the least, doubtful.”).

Finally, Justice Holmes considered both Lord Coke’s
statement that criminal liability might attach to one who
injures a viable fetus and Blackstone’s observation that a
child in its mother’s womb is considered in esse for
certain legal purposes — both relied on in the
opinions cited in Mallison in support of the existence of a
cause of action — but nevertheless concluded that
those sources did not dictate whether an infant could
maintain a tort action for injuries received in its
mother’s womb:

“[The question of] whether an infant dying before it was
able to live separated from its mother could be said to
have become a person recognized by the law as capable of
having a locus standi in court, or of being represented
there by an administrator * * * would not be disposed of
by citing those cases where equity has recognized the
infant provisionally while still alive en ventre. And
perhaps not by showing that such an infant was within the
protection of the criminal law.”

138 Mass at 16-17 (citations omitted). Allaire, which
considered whether an infant injured in his mother’s womb
four days prior to his birth could maintain a tort action
in his name, further indicates that the common-law sources
relied upon in Mallison would not have been interpreted in
1857 to establish the existence of a negligence action
under the circumstances of this case. 184 Ill at 367
(quoting Walker v. Great Northern Railway. Co., 28 LR (Ir)
69 (1891)) (“`As Lord Coke says, the plaintiff was then
pars viscerum matris [part of his mother’s body], and we
have not been referred to any authority or principle to show
that a legal duty has ever been held to arise toward that
which was not in esse in fact, and has only a fictitious
existence in law, so as to render a negligent act a breach
of duty.'”).

Because plaintiff would not have had an absolute common-law
right to bring an action in negligence for the child’s
prenatal injuries in 1857, our inquiry ends here. ORS
12.110(4) is not unconstitutional as applied to plaintiff’s


[fn1] In framing the issues before us, the parties assume
that plaintiff’s knowledge is relevant for purposes of the
discovery rule and make no distinction between information
that she learned in her capacity as conservator and her
capacity as child’s mother. For purposes of analysis, we
assume — as do the parties — that the
information known to plaintiff is relevant for purposes of
triggering the statute of limitations, but we express no
opinion as to the validity of that assumption. Compare
Banda v. Danner, 87 Or App 69, 741 P2d 514 (1987), aff’d by
equally divided court, 307 Or 302, 766 P2d 385 (1988), with
Perez v. Bay Area Hospital, 315 Or 474, 846 P2d 405 (1993).

[fn2] ORCP 21 A(9) provides that a defense may be made by a
motion to dismiss if “the pleading shows that the action
has not been commenced within the time limited by statute.”

[fn3] ORS 12.110(4) provides in part:

“An action to recover damages for injuries to the person
arising from any medical * * * treatment * * * shall be
commenced within two years from the date when the injury
is first discovered or in the exercise of reasonable care
should have been discovered. However, notwithstanding the
provisions of ORS 12.160, every such action shall be
commenced within five years from the date of the
treatment[.]” (Emphasis added.)

[fn4] ORS 12.160 provides in part:

“If, at the time the cause of action accrues, any person
entitled to bring an action mentioned in ORS * * * 12.070
to 12.250 * * * is within the age of 18 years * * *, the
time of such disability shall not be a part of the time
limited for the commencement of the action; but the period
within which the action shall be brought shall not be
extended more than five years by any such disability[.]”

Plaintiff, who, as conservator, acquires the benefit of the
disability statute, Luchini v. Harsany, 98 Or App 217, 779
P2d 1053, rev den, 308 Or 608 (1989), claims that she did
not first discover the child’s injuries until May 1999, at
which time her cause of action accrued under ORS 12.110(4),
giving her five years under ORS 12.160 — until May
2004 — to commence her action. Defendant does not
dispute the legal analysis of the application of ORS
12.110(4) and ORS 12.160.

[fn5] The remedy clause provides in pertinent part that
“every man shall have remedy by due course of law for
injury done him in his person, property or reputation.” Or
Const, Art I, § 10.

[fn6] Defendants argue that, at the latest, plaintiff should
have known of the child’s injury in November 1994 and,
therefore, under ORS 12.160, the statute of limitations
expired in November 1996 and, even if the five-year
disability period allowed in ORS 12.160 is tacked on to the
two-year period allowed in ORS 12.110(4), the statue of
limitations expired in November 2001.

[fn7] In Barke, a post-Smothers case, the plaintiff asserted
that application of the statute of ultimate repose to a
wrongful death claim was a violation of her rights under
Article 1, section 10, and Article I, section 20, of the
Oregon Constitution. We did not need to address the
defendant’s contention that a wrongful death action did not
exist at common law because we concluded that, at common
law, there was no rule of discovery, and the plaintiff’s
claim would have been subject to and barred by the statute
of limitations, which also served as a statute of ultimate
repose. 176 Or App at 481-82.

[fn8] An action for medical negligence was recognized at
least as far back as the middle of the 18th century. 3
William Blackstone, Commentaries on the Laws of England 122

[fn9] In Allaire, the Illinois Supreme Court followed
Dietrich. Justice Boggs issued a strong dissent in which he
wrote that “an adjudicated case is not indispensable to
establish a right to recover under the rules of the common
law,” 184 Ill at 368, which he believed allowed recovery
for a prenatal injury if the child was thereafter born
alive under the general principle that a person could
recover for an injury inflicted by another person. He
further stated, “If, in delivering a child, an attending
physician, acting for a compensation, should wantonly or by
actionable negligence injure the limbs of the infant, and
thereby cause the child, although born alive and living, to
be maimed and crippled in body or members, it would be
abhorrent to every impulse of justice or reason to deny to
such a child a right of action against such physician to
recover damages for the wrongs and injuries inflicted by
such physician.” 184 Ill at 373-74.

[fn10] At oral argument, plaintiff’s counsel contended that
the child’s injuries should be considered “natal” injuries
rather than “prenatal” injuries, and that the type of
injuries for which plaintiff seeks compensation are now
termed “perinatal.” How the injury would be described in
modern parlance, however, is immaterial; we are concerned
only with how Oregon courts might have characterized the
injury in 1857.

[fn11] The issue in Williams was whether the infant
plaintiff who was a viable fetus at the time of injury had
a right of action under a remedy clause in the Ohio
Constitution similar to Oregon’s remedy clause. The court
stated, “There can, of course, be no question that the
plaintiff was a `person’ at the time this action was
instituted.” 152 Ohio St at 117. It also wrote, “No
legislative action is required to authorize recovery for
personal injuries caused by the negligence of another. Such
right was one existing at common law.” Id. at 128. The court
in Mallison referred to the Williams case as “promulgating
the so-called modern doctrine.” 205 Or at 696.

[fn12] In Juarez, the court wrote,

“The court generally will reconsider common-law doctrines
in three situations: (1) when an earlier case was
`inadequately considered or wrong when it was decided’;
(2) when statutes or regulations have altered an
`essential legal element assumed in the earlier case’; or
(3) when the earlier rule was based on specific facts
that have changed.”

341 Or at 168.

Mallison discussed Dietrich and the law as it existed
before what it described as the modern view, which began to
emerge in the Bonbrest case. Mallison did not question
whether the “mother case,” Dietrich, 205 Or at 691, gave
birth to a principle of law that was inadequately
considered or wrong when it was decided. It is not our
place to make that decision, see Lowe v. Philip Morris USA,
Inc., 207 Or App 532, 544, 142 P3d 1079 (2006), but the
Supreme Court in Mallison recognized that except for tort
law, a fetus was acknowledged and given protection in other
areas of the law at the time Oregon’s Constitution was
adopted. Id. at 692-96. A case in which the Supreme Court
did revisit whether a cause of action existed at a common
law is Winn v. Gilroy, 296 Or 718, 681 P2d 776 (1984)
(parental immunity).

[fn13] The Restatement of Torts, § 869 (1939),
reflected the prevailing view. It stated, “A person who
negligently causes harm to an unborn child is not liable to
such child for the harm.”

[fn14] As required by Smothers, we limit our analysis to
whether in 1857 plaintiff could have maintained a
common-law action for negligence under the circumstances of
this case. Although the civil law considered an infant to
have no legal status apart from its mother until the moment
of its birth, Oregon’s early legislators criminalized
abortions not intended to preserve the life of the mother
in 1864. See General Laws of Oregon, Crim Code, ch II,
§ 513, p 407 (Deady & Lane 1843-1872) (“If any
person shall administer to any woman pregnant with child any
medicine, drug, or substance whatever, or shall use or
employ any instrument or other means, with intent thereby
to destroy such child, unless the same shall be necessary
to preserve the life of such mother, such person shall, in
case of death the such child or mother be thereby produced,
be deemed guilty of manslaughter.”). While Oregon’s
criminal law seemingly recognized the separate existence of
a fetus from its mother, as did Blackstone, 4 William
Blackstone, Commentaries on the Laws of England 198 (1769),
the law of negligence did not. The law of negligence,
though, was more forgiving to women in that, in some cases,
it allowed them to sue third parties for aborting or
attempting to abort a fetus. See Leslie Reagan, Victim or
Accomplice?: Crime, Medical Malpractice, and the
Construction of the Aborting Woman in American Case Law,
1860-1970, 10 Colum J Gender & L 311 (2001).

[fn15] Dietrich was affirmed in Bliss v. Passanesi, 326 Mass
461, 95 NE2d 206 (1950), but in Keyes v. Construction
Service, Inc., 340 Mass 633, 637, 165 NE2d 912 (1960), the
court wrote, “We think it advisable that in respect to the
subject of prenatal injury the law of this Commonwealth
should be in general in harmony with that of the large and
growing proportion of the other States which have adopted in
principle the rule proposed by Judge Boggs. There is no
need to reverse the Dietrich decision which doubtless was
right when rendered but we recognize that in view of modern
precedent its application should be limited to cases where
the facts are essentially the same.” (Emphasis added.) The
limitation was removed seven years later in Torigian v.
Watertown News Co., 352 Mass 446,448-49, 225 NE2d 926