Monusko v. Postle

437 N.W.2d 367, 175 Mich. App. 269
CourtMichigan Court of Appeals
DecidedFebruary 23, 1989
DocketDocket 95314, 95355
StatusPublished
Cited by30 cases

This text of 437 N.W.2d 367 (Monusko v. Postle) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monusko v. Postle, 437 N.W.2d 367, 175 Mich. App. 269 (Mich. Ct. App. 1989).

Opinions

Shepherd, J.

These consolidated appeals come to us on denial of the defendants’ motion for summary disposition as to Count i of plaintiffs’ complaint. Count i seeks damages for plaintiff Andrea Monusko for a preconception tort. The issue is one of first impression in this jurisdiction. We affirm the decision of the trial court and conclude that such a cause of action exists on the facts of this case.

Andrea Monusko was born on February 10, 1980, in a severely impaired physical and mental condition, suffering from rubella syndrome. A complaint was filed on her behalf in 1985. The complaint sets forth three theories for recovery. We are here concerned with Count i, alleging what might best be termed a preconception tort. In passing, we note that a 1982 suit resulted in a settlement of the parents’ claim for all past, present, and future medical and custodial expenses throughout Andrea’s lifetime. The instant suit seeks recovery for plaintiff Andrea Monusko’s pain and suffering, mental anguish, and emotional trauma.

Jill Rose Monusko began prenatal care and treatment at Burns Clinic on November 22, 1977, prior to the birth of her second child, Loretta Monusko. The individual defendant doctors pro[272]*272vide ob/gyn treatment at Burns Clinic. Mrs. Monusko received prenatal care through February of 1978. She was not tested for her rubella status at any of her visits.

On March 2, 1978, she was admitted to Northern Michigan Hospital, where Loretta was delivered by at least one of the Burns Clinic defendants. Mrs. Monusko was neither tested nor immunized during her stay in the hospital. She was neither tested nor immunized during her Burns Clinic visit. On March 22, 1979, Mrs. Monusko returned to the Burns Clinic to have her iud removed. She indicated to the attending doctor that she wished to have a third child. She was neither tested nor immunized for rubella at that visit.

Mrs. Monusko subsequently became pregnant with Andrea, suffered from rubella, and Andrea suffered the resulting difficulties. Rubella (a form of measles) is a disease which, if contracted by a pregnant woman, can result in damage to her child.

Plaintiffs put forward the recommendation made by the American College of Obstetricians and Gynecologists which states that a rubella test should be given to the pregnant patient if her status is unknown. They further rely on the acog standard which states that the first postpartum examination is "an optimal time for review of family planning and for determining immunizations, including rubella.” In essence, the complaint alleges a negligent failure to render appropriate prenatal care to Mrs. Monusko preceding the birth of her second child, Loretta, including failure to conduct appropriate lab examinations, including a rubella test, and failure to render appropriate postpartum intraconceptional and gynecological care to Mrs. Monusko following the birth of her second child, [273]*273including failing to perform tests to determine Mrs. Monusko’s rubella immunity status and in failing to immunize her against rubella, all in contravention of the acog standards.

The hearing on the motion for summary disposition was held on June 19, 1986. The thrust of defendants’ argument was that they owed no duty to a plaintiff not yet conceived. Defendants’ motion was denied and they now appeal.

In reviewing a grant of summary disposition under MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, this Court is obligated to accept as true all well-pled facts and to determine whether the plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323-324; 343 NW2d 164 (1984), cert den sub nom E R Squibb & Sons v Abel, 469 US 833; 105 S Ct 123; 83 L Ed 2d 65 (1984). A motion for summary disposition under MCR 2.116(C)(8) tests the genuineness of the claim by challenging the legal adequacy of the pleadings. Id.

The trial court, in its written opinion, stated the issue succinctly: "In general terms, the issue is whether or not a child, when born alive, has a cause of action for injury arising out of preconception negligent conduct.” The issue has otherwise been stated: "Whether there was a duty under these circumstances to a plaintiff who was not in being at the time of a wrongful act.” Renslow v Mennonite Hospital, 67 Ill 2d 348, 367; 367 NE2d 1250 (1977) (Dooley, J., concurring).

In the instant case we are confronted with the issue of duty. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the [274]*274injured person.” Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977). The question of duty depends in part on "forseeability — whether it is forseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.” 400 Mich at 439.

Other jurisdictions have concluded that a doctor or hospital can have a duty to a not-yet-conceived plaintiff. In Renslow v Mennonite Hospital, supra, the plaintiffs mother was given a negligently administered blood transfusion some eight years prior to the plaintiffs birth. The plaintiff was born with brain and physical injuries caused by the transfusion of rh positive blood into the rh negative mother eight years prior. The Illinois Supreme Court concluded:

The cases allowing relief to an infant for injuries incurred in its previable state make it clear that a defendant may be held liable to a person whose existence was not apparent at the time of his act. We therefore find it illogical to bar relief for an act done prior to conception where the defendant would be liable for this same conduct had the child, unbeknownst to him, been conceived prior to his act. We believe that there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child’s mother.
The extension of duty in such a case is further supported by sound policy considerations. Medical science has developed various techniques which can mitigate or, in some cases, totally alleviate a child’s prenatal harm. In light of these substantial medical advances it seems to us that sound social policy requires the extension of duty in this case. [.Renslow at 357-358.]

In Bergstresser v Mitchell, 577 F2d 22 (CA 8, 1978), the court held that under Missouri law a [275]*275child stated a cause of action against two doctors in a hospital for injuries allegedly sustained as the result of a negligently performed Caesarean section upon the child’s mother several years prior to the child’s birth. See also Jorgensen v Meade Johnson Laboratories, Inc, 483 F2d 237 (CA 10, 1973) (product liability case vacating district court dismissal and reinstating suit on behalf of children allegedly injured as the result of mother’s birth control pill usage).

Defendants rely heavily on a New York case prohibiting recovery for an alleged preconception tort. In that case the plaintiff was born with brain damage allegedly the result of a perforated uterus the plaintiffs mother received during an abortion several years prior to the plaintiffs birth. Albala v City of New York, 54 NY2d 269; 429 NE2d 786 (1981).

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Monusko v. Postle
437 N.W.2d 367 (Michigan Court of Appeals, 1989)

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Bluebook (online)
437 N.W.2d 367, 175 Mich. App. 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monusko-v-postle-michctapp-1989.