714 A.2d 970 | N.J. Super. Ct. App. Div. | 1998
The opinion of the court was delivered by
The issue presented by this appeal is whether a child with birth defects caused by malpractice in connection with the mother’s prior pregnancy is barred from maintaining a malpractice action against the doctor because his parents’ voluntary decision to conceive another child despite their awareness of the increased risks of any future pregnancy constitutes a supervening cause of the birth defects. We conclude that a trier of fact could find that the conception of additional children by the infant plaintiffs parents was reasonably foreseeable and consequently this action is not barred.
Defendants Laurence M. Scheininger and Laurence A. Seitzman are obstetricians who treated plaintiff Gale Ann Lynch during a 1984 pregnancy which ended in a stillbirth. This stillbirth result
In 1986, Mrs. Lynch and her husband, plaintiff Robert Lynch, brought a malpractice action against Dr. Scheininger and others seeking damages for the stillbirth and injury to Mrs. Lynch’s childbearing capacity. That action was eventually settled.
During the pendency of the prior action, Mrs. Lynch gave birth to plaintiff Joseph Lynch on January 11, 1987. Joseph was bom with extremely serious neurological impairments, which were caused by the same erythroblastosis condition which caused the 1984 stillbirth.
On January 3, 1990, plaintiffs moved to amend their complaint relating to the 1984 stillbirth to add claims arising out of Joseph’s birth. The trial court denied this motion, and on January 23, 1990, plaintiffs filed the present action, naming as defendants Drs. Scheininger and Seitzman, their professional associations, their associates Drs. Jerrold S. Finkel and Paul Drucker, Dr. Finkel’s estate, and the John F. Kennedy Medical Center.
After Scheininger filed a third-party complaint against Dr. Stephen A. Grochmal, the treating doctor during the mother’s pregnancy with Joseph, plaintiffs also joined Grochmal as a defendant. Prior to trial, plaintiffs settled their claim against Dr. Grochmal for $880,000.
During the trial, the court conducted a Lopez hearing,
At the close of plaintiffs’ case, the court also dismissed Joseph’s claim for wrongful life on the ground that the evidence could not support a finding that Mr. and Mrs. Lynch relied upon defendants’ advice in deciding to conceive another child.
At the conclusion of a twenty-three day trial, the court reserved decision on defendants’ motion to dismiss Joseph’s remaining
In a written opinion on the reserved motions, the court concluded that the recognition in the field of medical malpractice of “a preconception tort,” which it characterized as a claim that a defendant’s malpractice “cause[d] some injury to the mother’s reproductive ability before the child [was] conceived and, as a result, a child in a subsequent pregnancy [was] harmed,” would be consistent with New Jersey law and consequently it would “presume such a cause of action exists.”
Plaintiffs appeal from the dismissal of their claims. We reverse the part of the judgment dismissing Joseph’s claims for his
Before discussing the only substantial issue raised in this appeal, we briefly address plaintiffs’ other arguments.
Although none of plaintiffs’ point headings relate to the dismissal of Mr. and Mrs. Lynch’s claims on the ground that they were not filed within the two year limitation period, some of the discussion under Point III of their brief appears to be directed at this ruling. Consequently, we assume the appeal challenges the dismissal of Mr. and Mrs. Lynch’s claims. We affirm this ruling substantially for the reasons expressed in the trial court’s oral opinion of July 5,1995.
Plaintiffs argue that after granting a mistrial the trial court lacked jurisdiction to consider defendants’ reserved motion to dismiss. However, Rule 4:40-2(a) provides in pertinent part:
Reservation of Decision. The court may reserve decision on a motion for judgment made at the close of all the evidence, submit the case to the jury and then decide the motion either before or within 10 days after the verdict, or if no verdict is returned, within 10 days after the jury’s discharge. (Emphasis added).
Thus, the applicable court rule expressly permits the trial court to reserve on a motion for judgment and decide the motion later even if no verdict is returned.
Plaintiffs also argue that the motion for judgment was improperly granted because it was not renewed by defendants after the trial. However, a party is required to renew a motion for judgment only if it has been denied at trial. R. 4:40-2(b). If the court has reserved decision, the moving party is entitled to a ruling without renewing the motion. R. 4:40-2(a); see Wenner v. McEldowney & Co. 102 N.J.Super. 13, 18-19, 245 A.2d 208 (App.Div.), certif. denied, 52 N.J. 493, 246 A.2d 452 (1968).
Plaintiffs’ brief does not contain any point heading which challenges the trial court’s conclusion that the record does not contain any evidence from which a reasonable trier of fact could find that Dr. Seitzman committed malpractice. However, plaintiffs make several cryptic references to this conclusion under Points III and
We turn now to the only substantial issue raised in this appeal: whether Joseph is barred from any recovery for Dr. Scheininger’s malpractice because his parents’ voluntary and intentional act of conceiving him despite their awareness of Mrs. Lynch’s Rh sensitized condition constituted a supervening cause of his disabilities.
“[A] tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his
“A tortfeasor is answerable for the consequences of wrongful conduct despite the occurrence of an intervening cause of
In this case, a jury could find that it was reasonably foreseeable the Lynches would conceive additional children after the 1984 stillbirth caused by Dr. Scheininger’s negligence. The desire to bear children is one of the most basic human instincts. Consequently, many couples choose to conceive a child even though they are aware that the age or physical condition of the mother or the history of her past pregnancies may create a greater than normal risk of the birth of a child with abnormalities. For this reason, we perceive no basis for concluding as a matter of law that it is not reasonably foreseeable that a married couple would attempt to conceive additional children simply because a doctor’s malpractice in connection with a prior pregnancy has increased the risk that a child bom of a subsequent pregnancy will
This conclusion is directly supported by the Supreme Court of Indiana’s decision in Walker v. Rinck, 604 N.E.2d 591 (Ind.1992), which also involved a malpractice claim brought by children with alleged birth defects caused by the defendant doctor’s failure to properly manage their mother’s prior pregnancy which resulted in her developing Rh isoimmunization. In reversing a summary judgment in the doctor’s favor on the ground that the parents’ decision to conceive additional children constituted an intervening, superseding cause of the children’s health problems, the court stated:
Whether Mr. and Mrs. Walker should have conceived additional children after having knowledge of the risks of doing so or whether they should have aborted these three children may be a matter of great public and private debate. However, as a court of law, we need not decide this question because we hold that their conduct in conceiving these children was not an intervening, superseding cause. A superseding, intervening cause sufficient to break the causal chain between wrongful conduct and injury must be one that is not “foreseeable” at the time of the wrongful conduct. Here, the very purpose of giving EhoGAM was to prevent the totally foreseeable consequences of a mother who has developed antibodies from becoming pregnant and delivering a viable child____ Because [Mrs. Walker delivering additional children] was foreseeable at the time of the alleged negligent acts, it cannot be an intervening, superseding cause of the Walker children’s alleged injuries.
[Id. at 596.]
Graham v. Keuchel, 847 P.2d 342 (Okl.1993), upon which the trial court relied in dismissing Joseph’s claims, does not support the conclusion that the decision of an Rh sensitive mother to bear additional children constitutes a supervening cause which precludes the imposition of liability upon a doctor who committed malpractice in the management of her prior pregnancy. Instead, the court in Graham reversed a jury verdict in favor of the defendant doctor in part because the court’s instructions regarding supervening causation were unduly favorable to the doctor. The court indicated that proper instructions would require the court to inform the jury that to rule in the doctors’ favor on the issue of supervening causation, it would have to find, among other things, that the mother’s decision to conceive another child was “unforeseeable to the physicians.” Id. at 354 n. 55. Therefore, even though some of the court’s discussion in Graham appears inconsistent with our conclusion that Joseph is not barred from maintaining this action, the result — a remand for the jury to decide the issue of supervening causation guided by proper instructions — is consistent with the result we reach here.
Finally, we note that there was no evidence adduced at trial concerning the mathematical probability of the Lynches conceiving a fetus with severe abnormalities or the probability that any such abnormality could be prevented or minimized through proper management of the pregnancy. In fact, the only evidence bearing on the question was the testimony of defendants’ own expert, Dr. Anthony Quartell, who expressed the opinion that but for the malpractice of the obstetrician, Dr. Grochmal, in the management of Joseph’s pregnancy, “in all likelihood this baby would be healthy today.” Moreover, there was sharply conflicting evidence regarding what the Lynches were told prior to Joseph’s conception about the risks of any future pregnancy. Therefore, we have no occasion to decide whether a defendant in a medical malpractice case would be entitled to judgment as a matter of law on the
Accordingly, we reverse the part of the judgment dismissing Joseph’s claims against Dr. Scheininger for his disabilities and consequent medical and other expenses. We affirm the judgment in all other respects.
The claims asserted in the present action were expressly excepted from the release executed in connection with this settlement.
The parties other than Drs. Scheininger and Seitzman either were never served with the complaint or were dismissed prior to submission of the case to the jury. Plaintiffs do not raise any issue with respect to any party other than Drs. Scheininger and Seitzman.
Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973).
This ruling is not challenged in this appeal.
In Taylor v. Cutler, 306 N.J.Super. 37, 703 A.2d 294 (App.Div.1997), a panel of this court held that a child with birth defects caused by damage to his mother's reproductive system as a result of an automobile accident could not maintain a preconception tort claim. However, the court implied in dictum that it would recognize the maintainability of a preconception tort claim against doctors whose malpractice in connection with a mother's prior pregnancy was a proximate cause of a child’s birth defects. Id. at 50-52, 703 A.2d 294. Taylor is currently pending before the Supreme Court. 153 N.J. 52, 707 A.2d 155 (1998).
Plaintiffs argue that the trial court erred in finding that Mr. and Mrs. Lynch were aware when they conceived Joseph that Mrs. Lynch's Rh sensitive condition created a risk of any future pregnancy resulting in a fetus developing erythroblastosis. The cotut concluded that its earlier findings in the Lopez hearing were controlling with respect to defendants’ motion to dismiss Joseph's claims under the doctrines of collateral estoppel and law of the case. This ruling was erroneous. For the doctrine of collateral estoppel to apply, the issue must be identical to the one previously presented, the prior action must have been a judgment on the merits, and the party against whom the doctrine is asserted must be the same, or in privity with, a prior party. Allesandra v. Gross, 187 N.J.Super. 96, 105, 453 A.2d 904 (App.Div.1982). Moreover, collateral estoppel applies only to facts that were directly in issue and necessary to support the prior judgment. Ibid. The factual issue on defendants' motion to dismiss Joseph's claims was not identical to the issue decided in the Lopez hearing nor was it necessary to support the determination at that hearing. In the Lopez hearing, the court concluded that when Joseph was bom, the parents "had in their possession overwhelming facts that would suggest to a reasonable person of ordinary diligence that the conduct of the Defendant Doctors may have been negligent and may have been a cause of Joseph’s condition.” In contrast, when entering judgment against Joseph, the court found that "Mr. and Mrs. Lynch intentionally and voluntarily went forward and conceived a child knowing the serious risks which Mrs. Lynch's blood condition presented to a baby." The finding that the parents had actual knowledge of serious risk before conception is not identical to the findings that they reasonably should have known of defendants’ negligence after the birth. Moreover, even though the court observed in its opinion at the Lopez hearing that the "evidence was overwhelming” that the plaintiffs were aware of the risks presented by Mrs. Lynch’s Rh negative