recognizing preconception tort cause of action in suit for mother’s injuries and child’s wrongful death based on allegation that physicians during prior pregnancy failed to determine mother’s Rh negative blood type or to prescribe Rhogam, resulting in the death of child of subsequent pregnancy due to erythroblastosis fetalis; reversing jury verdict for defendants in part because jury misled by erroneous instruction that mother’s “election” to become pregnant with knowledge of her condition broke chain of causation and insulated defendants from liability
How later courts described this case
- recognizing preconception tort cause of action in suit for mother’s injuries and child’s wrongful death based on allegation that physicians during prior pregnancy failed to determine mother’s Rh negative blood type or to prescribe Rhogam, resulting in the death of child of subsequent pregnancy due to erythroblastosis fetalis; reversing jury verdict for defendants in part because jury misled by erroneous instruction that mother’s “election” to become pregnant with knowledge of her condition broke chain of causation and insulated defendants from liability
- indicating that evil intent may be inferred from a complete indifference to the consequences, reckless disregard of the safety of others, or gross negligence
- holding patient=s knowledge of importance of her blood type and need to receive Rho-GAM shot during pregnancy but failure to advise doctors during her fifth pregnancy was some evidence of contributory negligence
- refusing to rule that "mistake of judgment" instructions are impermissible and finding only that instruction should not have been given based on lack of evidence concerning "choice of several alternatives, equally acceptable medically”
Written by the judges who cited it.
The opinion
SUMMERS, Justice,
concurring in result.
I too would reverse and remand for new trial, but would not submit to the jury the defendants’ theory of “supervening cause.” The opinion correctly sets out the three-pronged test for a supervening cause which will insulate the original actor/defendant/doctor from liability: the “new” cause must be (1) independent of the original act, (2) adequate of itself to bring about the result, and (3) one whose occurrence was not reasonably foreseeable to the original actor/defendant/doctor. Thompson v. Presbyterian Hospital, Inc., 652 P.2d 260, 263 (Okla.1982); Long v. Ponca City Hospital, Inc., 593 P.2d 1081, 1084 (Okla.1979).
Under the theory as urged by defendant doctors prong one is clearly present, and prong three is arguably a proper question for the jury under these facts. But prong two, under any theory defendants advance, is simply missing. This second prong is critical because “[n]ot every intervening cause will insulate the original negligent actor from liability.” Thompson , 652 P.2d at 264 . If a causal factor is capable of combining with another act or omission to produce the injury, each actor may be subject to liability. Id. The opinion appears *368 to confuse the mother’s alleged wilfulness in getting pregnant against all advice and common sense, with the requirement that the pregnancy be “adequate of itself” to cause the result. The result was that Donald died after four days of life. Even under defendants’ theory two things were required to combine to bring about Donald’s death: (1) the doctor’s negligent failure to administer Rho-GAM following her fourth pregnancy, and (2) her wilful pregnancy knowing of her condition. Her pregnancy alone, even if deliberate, was not “adequate of itself” to cause the result.
The doctors have not conceded that the failure to give Rho-GAM amounted to negligence. The question of supervening cause will not come into play, however, unless it is determined that there was some earlier actionable act or omission by the doctors. See Thompson, 652 P.2d at 264 . Regardless of the outcome of this issue, an instruction on supervening cause is not warranted. If there is no negligence on the part of the doctors, the instruction is superfluous. If there is negligence by the doctors, the second prong of the test is still not satisfied and the instruction would be improper. The supervening cause instruction should not be given where, as here, the result could not have come about in the absence of the first actor’s alleged misconduct, which was failure to give Rho-GAM. The mother’s alleged wilful and foolish impregnation could not have been “adequate of itself” to cause the result.