Walker v. Rinck

566 N.E.2d 1088, 1991 Ind. App. LEXIS 220, 1991 WL 22392

• Court: Indiana Court of Appeals
• Decided: February 21, 1991
• Docket: 64A03-8906-CV-226
• Status: Published

Opinions

HOFFMAN, Presiding Judge.

Plaintiffs-appellants Kathy, Jennifer, and Nathan Walker, by next friend Kenneth Walker, appeal the decision of the trial court granting summary judgment in favor of defendants-appellees Dr. Larrie G. Rinck and Lake Ridge Laboratory, Inc. (Lake Ridge).

The facts relevant to this appeal disclose that in October of 1975, Dr. Rinck, Judith Walker’s family physician, informed Judith that she was pregnant. Judith, a registered nurse, informed Rinck that she had Rh-negative blood.¹ Rinck ordered the routine battery of tests, and the blood chemistry report from Lake Ridge erroneously indicated that Judith’s blood was Rh positive. On June 7, 1976, Judith gave birth to her first child, Rachel, who has Rh-positive blood. Judith did not receive a RhoGAM injection at any time during the pregnancy or after the birth.

In 1979, Judith left Rinck’s care and became a patient of Dr. Jack Schwartz. She suffered a miscarriage in December of 1979, and while she was recovering in the hospital, a lab technician informed her that she was not a candidate for RhoGAM because her “antibodies” had already been established. Judith again became pregnant in 1980, and Schwartz informed her that, due to her Rh sensitization, the baby might be premature and anemic. On May 13, 1981, Judith gave birth to her second child, Nathan, who has Rh-positive blood. Nathan was approximately five weeks premature and suffered from anemia and respiratory problems.

Although Judith and Kenneth had planned to have only two children, Judith once again became pregnant in June of 1984. She became a patient of Dr. Michael Socol in August or September of 1984, and gave birth to twins, Kathy and Jennifer, on February 11, 1985. Kathy has Rh-positive blood and suffers from a severe hearing impairment, motor skill deficiencies, and possible mental retardation. Jennifer has Rh-negative blood and suffers from asthma. The twins were approximately four weeks premature.

On December 23, 1985, the Walkers filed a complaint against Rinck and Schwartz for negligence. The Walkers filed an amended complaint on May 29, 1986, adding Lake Ridge and the St. Anthony Medical Center, Inc. as defendants. Lake Ridge filed a motion for summary judgment on July 15, 1988, and Rinck filed a motion for summary judgment on October 13, 1988. The trial court granted both motions on December 30, 1988. This appeal ensued.

The Walkers raise two issues for review which this Court restates as follows:

(1) whether the Walkers’ claim states a cause of action; and

(2) whether the statute of limitations bars the Walkers’ claim.

In this case of first impression in Indiana, the Walkers ask this Court to hold that a cause of action exists for children who are injured as a result of a “preconception tort” committed against the mother. They rely heavily on Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250, and Monusko v. Postle (1989), Mich.App., 437 N.W.2d 367, in support of their position; however, these cases relied in part upon precedent in prenatal injury cases and product liability cases. See, e.g., Sinkler v. Kneale (1960), 401 Pa. 267, 164 A.2d 93; Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir.1973), 483 F.2d 237. Defendants, on the other hand, ask this Court to follow the reasoning of Albala v. City of New York (1981), 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786, a case in which the Court of Appeals of New York refused to recognize a cause of action for a preconception tort. The Albala court outlined the following policy considerations for its decision:

“We are of the opinion that the recognition of a cause of action under these circumstances would require the extension of traditional tort concepts beyond manageable bounds[.]

[Tjhere is no predicate at common law or in our statutes for judicial recognition of the birth of a defective child as an injury to the child....

We determined long ago in a case involving policy issues as sensitive as the ones at bar that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability. [Citations omitted.]

Unlimited hypotheses accompanied by staggering implications are manifest. The perimeters of liability although a proper legislative concern, in cases such as these, cannot be judicially established .in a reasonable and practical manner.

* * * * He

While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred.” [Citation omitted.]

Id., 445 N.Y.S.2d at 109-111, 429 N.E.2d at 787-789. Based on these considerations, we affirm the trial court’s decision to grant summary judgment in favor of defendants.

Moreover, even assuming a cause of action exists in this case, the conduct of the parents was an intervening, superseding cause of the children’s health problems. The depositions of both parents and the complaint show that the parents were aware of the Rh sensitization in 1979. Nathan was not born until May of 1981, and the twins were not born until February of 1985. As our Supreme Court noted in Havert v. Caldwell (1983), Ind., 452 N.E.2d 154, 158: “an intervening cause may serve to cut off the liability of one whose original act or omission sets in motion the chain of events or circumstances leading to an injury.” Clearly, the parents’ conduct in conceiving children with knowledge of the Rh sensitization was an intervening, superseding cause of Nathan and Kathy’s problems; ² therefore, any negligence on the part of defendants was not the proximate cause of the problems.

Due to our decision on the first issue, we need not address the second issue.

The judgment of the trial court is affirmed.

GARRARD, J., concurs. STATON, J., dissents with opinion.

1 . Judith's husband, Kenneth, has Rh-positive blood. When an Rh-negative woman is pregnant with an Rh-positive child, her blood develops Rh agglutinins or clumping agents. On a subsequent pregnancy, if the fetus is Rh positive, these agglutinins can harm the infant’s blood. An injection of RhoGAM,¹ Rh immune globulin, prevents the formation of the aggluti-nins in Rh-negative women who have received Rh-positive blood. See generally 3 Schmidt’s Attorneys’ Dictionary of Medicine, R-100-102, 110 (1990). 1

2 . The other twin, Jennifer, is Rh negative. As previously discussed in footnote 1, the Rh agglu-tinins can harm only Rh-positive babies; therefore, Jennifer’s problem (asthma) is not due to her mother’s failure to receive a RhoGAM injection.