# Graham v. Keuchel > Supreme Court of Oklahoma · January 26, 1993 · 64 O.B.A.J. 420 URL: https://www.frixlaw.com/law-library/cases/9793266 ## Case - **Full name:** James Randolph GRAHAM, II and Katrina Dawn Graham, Natural Father and Mother, Guardians and Next Friends of Donald Keaton Graham, a Deceased Minor, Appellants and Counter-Appellees, v. Joseph A. KEUCHEL, D.O.; W. Richard Loerke, D.O.; Benien Clinic, Inc., an Oklahoma Corporation, Donald G. Dunaway, D.O.; Osteopathic Hospital Founders Association, an Oklahoma Corporation, D/B/A Oklahoma Osteopathic Hospital, Appellees and Counter-Appellants, and Drs. Dean, Hall & Ryker, William E. Hall, M.D., and David E. Ryker, M.D., Defendants - **Court:** Supreme Court of Oklahoma - **Decided:** January 26, 1993 - **Citations:** 64 O.B.A.J. 420; 847 P.2d 342; 1993 OK 6; 1993 Okla. LEXIS 10; 1993 WL 20227 - **Precedential status:** Published - **Opinion:** Concurrence by Summers - **Judges:** Opala, Hodges, Lavender, Hargrave, Watt, Summers, Simms, Kauger, Wilson - **Cited by:** 88 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9793266 ## How later opinions describe it (automated extraction) - 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 sub… - 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 - finding "mistake of judgment” instruction to be error when not placed "in its proper context' — i.e., defines it as a situation in which the doctor faces a choice of alternative treatments” ## Opinion text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793266. Public record. Not legal advice.