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
SIMMS, Justice,
concurring in part, dissenting in part:
In my opinion the instruction containing the language “elected to become pregnant” is neither vague nor ambiguous. I believe the instruction was properly given to the jury and I dissent to that part of the majority opinion holding otherwise.