recognizing liability to a child based on a doctor’s preconception duty to that child for injuries arising from the doctor’s negligent failure to properly sensitize the Rh-factor in the mother, the purpose of which was to protect future fetuses from developing injuries in utero
How later courts described this case
- recognizing liability to a child based on a doctor’s preconception duty to that child for injuries arising from the doctor’s negligent failure to properly sensitize the Rh-factor in the mother, the purpose of which was to protect future fetuses from developing injuries in utero
- recognizing causes of action for preconception tort by children of subsequent pregnancies who sustained injuries caused by erythroblastosis fetalis because of laboratory’s and physician’s failures during prior pregnancies to identify mother’s Rh negative blood and to prescribe Rhogam
- distinguishing cases in which the defendant’s alleged negligence actually caused an abnormality in a fetus or infant who otherwise would have been born normal from cases alleging wrongful life or wrongful birth actions
- acknowledging the ability of a person not yet conceived at the time of the negligent act to sue the negligent actor otherwise known as a "preconception tort"
Written by the judges who cited it.
The opinion
SHEPARD, Chief Justice,
dissenting.
The new cause of action which the Court now adds to Indiana's legal landscape has two extremely unattractive features.
First, this new tort exposes medical providers to decades or even generations of potential liability. A physician whose treatment of a patient may cause adverse consequences to the patient's future children will be subject to liability until the eighth year after the last child is born. Moreover, it seems probable that some treatments have consequences which pass beyond the second generation and into the third. This is a very long liability tail indeed. It is among the reasons the New York Court of Appeals elected not to start down this trail. See Enright v. Eli Lilly & Co., 77 N.Y.2d 377 , 568 N.Y.S.2d 550 , 570 N.E.2d 198 (1991).
Second, I think these will be ugly lawsuits. The majority passes lightly over the role of the parents in this case, saying it chooses not to debate whether the parents should have conceived additional children or not after they learned of the health hazards of doing so. Foreswearing debate of this considerable moral choice, the majority flatly declares that their decision to *598 conceive is not an efficient intervening cause which can be a basis for summary judgment. Actually, under today's decision, the Walkers can create liability for Doctor Rinck by choosing to conceive or eliminate his liability to future children by choosing not to conceive. This seems about as efficient as an intervening cause can get. Inasmuch as this issue is now not resolved on summary judgment, it will now be put to a series of juries. The evidence for and against will not be very pretty, and the predictability of the law as fashioned by juries case-by-case is likely to be erratic.
The real cause of action and the most serious damage in this case is the Walker's loss of their potential to bear additional children secure in the knowledge that those will likely be healthy children. If that were the cause of action at issue today, I would vote for the Walkers.
GIVAN, J., concurs.
GIVAN, Justice, dissenting in part.
The majority opinion correctly observes that Judge Staton dissented to the Court of Appeals opinion in this case. However, I would note that Judge Staton's dissent did agree with the majority opinion in that "Mr. and Mrs. Walker's conduct operated as an intervening superseding cause with respect to the twins, Jennifer and Kathy, I cannot agree that the parents had knowledge of the RH-sensitization and its ramifications prior to the conception of Nathan."
In Yeager v. Bloomington Obstetrics (1992), Ind.App., 585 N.E.2d 696 , the Court of Appeals opinion, which this Court is affirming, alluded to Walker v. Rinck and to Judge Staton's dissenting opinion. In that case, the Yeagers alleged in their complaint that the defendants failed to advise Lorraine Yeager that she had developed an RH sensitization and should avoid further pregnancies. The opposite is true in the Walker case. At least after the birth of Nathan, the Walkers were fully advised of their situation and had full knowledge that future pregnancies might result in birth defects.
To say that the defendants would be responsible for birth defects in children conceived after the parents received such knowledge is to hold that parents with such knowledge could continue to produce children and each time a defective child was produced the defendants would be subject to damages. I agree with Judge Staton's observation in his dissenting opinion that this is not a proper extension of Hability.
I therefore would remand the case to the trial court for damages only as to Nathan.