Walker v. Rinck

Walker, and Judith Kenneth WALKER Walker,

Individually, Kathy Jenni- Walker, Minors

fer Walker and Nathan Walker, Appellants Kenneth

b/n/f (Plaintiffs Below), RINCK, Ridge and Lake D.O.

Larrie G. Inc.,

Laboratory, Appellees

(Defendants Below). 64A03-8906-CV-226.

No. Indiana, Appeals of

Court of

Third District.

Feb.

Rehearing March Denied Wellman, Allen, E. Brand &

Dawn Greenfield, appellants. for Brown, Gioia, Span- A. D. Robert Daniel P.C., Dougherty, Merrill- gler, Jennings & Gerken, Wagner ville, Hoeppner, Katharine Evans, appellee Larrie Valparaiso, & for G. Rinck, D.O. Eichhorn, Hanning, Eichhorn &

Richard Hammond, Link, appellee Ridge Lake Laboratory, Inc. Judge.

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

The facts relevant Rinck, Dr. that October family physician, informed Judith Walker’s Judith, pregnant. reg- she was nurse, Rinck that she had informed istered Rinck ordered rou- Rh-negative blood.1 tests, battery the blood chemis- tine RhoGAM,1 husband, Kenneth, injection Rh-positive Rh immune An blood. 1. Judith's aggluti- globulin, prevents preg- Rh-negative formation woman When an blood. Rh-negative who have received Rh-positive women her blood devel- nins with an nant generally Rh-positive 3 Schmidt’s agglutinins clumping agents. blood. See On a ops Rh R-100-102, Medicine, Dictionary posi- Attorneys’ subsequent pregnancy, is Rh if the fetus (1990). tive, agglutinins the infant’s harm these can report try Ridge erroneously (2) from Lake the statute of limitations posi- indicated that Judith’s blood Rh bars the Walkers’ claim. 7, 1976, tive. On June Judith birth gave impression In this first in child, Rachel, Rh-positive her first who has Indiana, the Walkers ask this hold Court to blood. Judith did a not receive RhoGAM a cause of action exists for children injection any during pregnancy time who are “preconcep as a result of a or after the birth. against tion tort” committed the mother. 1979, In Judith left Rinck’s care and be- They rely heavily on Renslow Mennon patient a came of Dr. Jack Schwartz. She Hospital (1977), 348, ite 67 Ill.2d 10 Ill.Dec. miscarriage suffered a in December of 484, 1250, and Monusko v. Pos 1979, recovering and while she was in the tle Mich.App., 367, in N.W.2d hospital, a her lab technician informed support position; however, of their these a she candidate for RhoGAM be- part upon precedent cases relied in pre her already “antibodies” had been product liability natal cases and again pregnant established. Judith became See, e.g., cases. Sinkler v. Kneale 1980, that, and Schwartz informed her 267, 93; 401 Pa. A.2d sensitization, baby due to her might Laboratories, (10th Meade Johnson Inc. 13, premature May and anemic. On Cir.1973), Defendants, 483 F.2d 237. on 1981, Judith gave birth her second hand, the other ask this Court to follow the Nathan, has Rh-positive blood. Na- reasoning of City Albala v. New York approximately prema- than was five weeks 54 N.Y.2d 445 N.Y.S.2d ture and suffered respira- from anemia and a case which the Court problems. tory Appeals recog of New York refused a nize cause of for a preconception action Although Judith and Kenneth had tort. The Albala court outlined the follow planned children, only to have two ing policy considerations for its decision: again pregnant once became June of patient 1984. She became of Dr. Michael opinion “We are recogni that the in August September Socol or and tion of a cause of action under these twins, gave Jennifer, Kathy birth to on and circumstances would the exten February Kathy Rh-positive has sion of beyond traditional tort hearing and blood suffers from a severe manageable bounds[.] deficiencies, impairment, motor skill

possible mental retardation. has Jennifer

Rh-negative [Tjhere predicate blood and suffers from asth- is no at common law approximately ma. The our judicial twins four statutes for premature. weeks as an injury the birth of defective child to the child.... 23, 1985, On December filed Walkers ago long We determined in a case involv- complaint against Rinck and for Schwartz ing policy issues as the as sensitive ones negligence. The Walkers filed an amended foreseeability bar alone not May 29, complaint adding on Lake legal duty hallmark for if foreseeabil- Center, Ridge Anthony St. Medical logi- ity were the sole test we could not Ridge Inc. as defendants. Lake filed cally liability. confine summary judgment July for motion [Citations omitted.] 1988, and Rinck filed a motion for summa- ry judgment on October 1988. The trial hypotheses accompanied by Unlimited granted both motions on December staggering implications are manifest. appeal 1988. This ensued. although a perimeters concern, proper legislative in cases such for The Walkers raise two issues review these, judicially established cannot be Court restates as follows: practical manner. .in reasonable (1) whether Walkers’ claim states cause of action; ^{[*] [*] [*] [*]} He to exercise care always great question of whether temptation is While the governed of relief to one who provide a form arises suffered, parties that the and an issue of law within the it is well established every remedy Douglass provide province of the court. v. Irvin law cannot duty (1990), Ind., of injury incurred.” N.E.2d 368. The 549 omitted.] [Citation to care is not owed the world reasonable 109-111, Id., 445 N.Y.S.2d at might large, rather to those who rea- but considerations, Based on these 787-789. being subject to sonably as be foreseen grant to the trial court’s decision we affirm duty. Thiele v. injury by breach of the summary judgment in favor of defendants. (1986),Ind.App., 489 Faygo Beverage, Inc. Moreover, assuming a of cause even denied, n. trans. N.E.2d reh. case, conduct of in this action exists reasonably per- “The to be risk denied. superseding intervening, parents was an duty obeyed, ceived defines the be problems. of the children’s health cause relation; imports it is risk to another risk parents and depositions of both The range apprehen- or to others within parents complaint show R. Palsgraf Long sion.” v. Island Co. Na 1979. aware of the sensitization 339, 344, (1928), 162 N.E. 248 N.Y. 1981, and May of was not born until than February duty until an in a the twins were born When faced with issue Supreme case, apply noted in Ha As our Court negligence Indiana (1983), Ind., 452 N.E.2d foreseeability tempered by a considera vert Caldwell test intervening may serve relationship parties. 158: “an between the tion original liability of whose duty to cut off the one determining legal whether a “In the chain arises, act or omission sets motion given to the consideration must be inju leading to an or circumstances events relationship people between nature of in con ry.” Clearly, parents’ being charged with party whether the knowledge of the Rh ceiving with children knowledge had of the situation negligence intervening, supersed was an sensitization surrounding relation circumstances Kathy’s prob cause of Nathan ing (1990), ship.” Dant v. Clinard by T.S.B. 2 therefore, lems; any negligence on the 1253, 1256. also Ind.App., 553 N.E.2d See proximate was not the of defendants Corp. Aluminum Lawson v. Howmet problems. cause of the (1983), Ind.App., 449 N.E.2d 1172. The knowledge danger of this attendant issue, first we decision on the Due our imputed. Hunsberger Wyman actual or second issue. need not address the 247 Ind. court is af- judgment of the trial The 345, 348; Ind. Edgman State v. firmed. denied, trans. App., 447 N.E.2d reh. denied. J., GARRARD, concurs. concepts Applying traditional J., opinion. STATON, with dissents is the defendants it clear that this STATON, Judge, dissenting. have known risk knew or should disregards tradi- majority I dissent. by the failure to administer occasioned tort, analogous

tional equally It Walker. RhoGAM to Judith law, in its policy considerations children are that Judith’s later-born clear exists holding no cause action might reasonably be foreseen those who case. this being injury by breach of the subject to indeed, drug duty; which should have duty in principles of Fundamental specifical- Judith been administered tort law Indiana risk of ly designed to reduce the narrow upon a cause action based this situation. suffered children presented in case. of facts set fore, (asthma) twin, Jennifer, problem not due to negative. As Jennifer’s 2. The other is Rh injec- agglu- to receive RhoGAM her mother’s failure the Rh previously discussed in footnote babies; tion. there- only Rh-positive can tinins harm requisite defendants also maintained the malpractice ...” indicates that this cause children which gives of action is not foreclosed. duty. rise to defendants rendered law jurisdictions Case from other in- Walker, service the moth- structive as well. In a case decided plaintiffs. Considering er of the traditional facts, nearly identical plaintiff alleged law, of negligence notions the defendants that the negligently defendants transfused owed of reasonable care to the her mother positive with Rh blood on two Walker children.1 occasions. Hospi- Renslow v. Mennonite language Malpractice of Medical tal Ill.2d 10 Ill.Dec. supports Act this conclusion. The Act de- N.E.2d mother, 1250. The thir- "malpractice” fines as: years teen old at time of the transfu- sions, negative had Rh a or of blood which was tort breach contract based incompatible with, and became professional health care or sensitized services ren- by, dered, positive the Rh plaintiffs blood. The or which should have been ren- dered, mother discovered she by had been a health Rh-sensi- provider, care to a in the prenatal tized of course care. Plain- patient. tiff was born prematurely, suffering from 16-9.5-l-l(h). A “patient” IC is defined jaundice hyperbilirubinemia, requiring as: immediate, complete two exchange transfu- an individual who receives or should have of sions her blood. received health care from a health care Appellate The Illinois provider, contract, Court found that a express under a or duty plaintiff, existed to the holding that implied, and person includes a a having showing there was no kind, that defendants any claim or derivative of otherwise, reasonably could not have foreseen that alleged as a result mal- of teenage child, girl would later bear a practice on the of a health care and that the child would be provider. include, Derivative claims but result of to, negligence. defendants’ Ill. 40 are not limited the claim of a parent 234, App.3d 239, 870, 351 trustee, N.E.2d parents, guardian, child, or rela- Supreme affirmed, finding Illinois Court tive, it attorney, any representa- other “illogical to relief prior bar for an act done patient of the including tive claims for conception where the defendant services, consortium, of would loss loss of ex- be liable this same had the penses, and other similar claims. him, unbeknownst to been conceived 16-9.5-l-l(c) (emphasis added). IC prior 357, to his act.” 67 at Ill. Ill.2d 10 brought Walker children have a claim Dec. at N.E.2d at 367 1255. The Ren- they allege is the of result the defen- right slow court held that there be malpractice. Thus, they dants’ “pa- are prenatal born free from foresee- scope tients” within the of Act. A ably caused breach of construction of the statute which excludes child’s mother. “patients” from class those individu- physically als were not present when The Renslow court also considered estab- provider the health care principles duty, rendered services lished tort noting that plain meaning would controvert the long recognized Illinois “has that a say may the Act. While we cannot foreseeably exist to one harmed legislature particular envisioned this though sce- he be unknown and remote in time nario, language person “a having place,” long “the law has kind, any alleged claim of ... as a recognized wrong person result that a done to one life; damaged, As the court noted Schroeder v. Perkel if one strand is the whole 834, 839; (1981), family 87 NJ. 432 A.2d may structure suffer. filaments life, although individually spun, web create a foreseeability injury to members of legal family immediately injured by of interconnected interests. This court other than one recognized wrongdoing wrongdoer that a who causes of another must viewed light legal among family family relationships of the one of the direct member family damage may indirectly A members. woven fibers another. 1092 Id., rights yet of one conceived. 437 N.W.2d at protected who were not invade first.” intimately Id. 369-70. related 488-89, Ill.Dec. at 10 jurisdictions have concluded that Other poli- held further 1254-55. yet duty may persons con- extend considerations, cy such as advances negligent of a act or ceived at the time led to sciences which made in See, v. Parke- e.g., omission. Harbeson torts, warranted prenatal Davis, (1983), 98 Wash.2d 656 Inc. it. before 483; Turpin 31 v. Sortini P.2d N.E.2d Ill.Dec. at 367 337; Cal.Rptr. 643 P.2d Cal.3d at 1255. (8th Cir.1978), Bergstreser v. Mitchell law); recently, v. Postle 22 (applying

More Monusko F.2d Missouri Laboratories, (10th Mich.App. 437 N.W.2d Inc. v. Meade Johnson Michigan recognized Appellate Cir.1973), Court (applying 483 F.2d 237 Oklahoma action); tort” cause of action “preconception McAuley viable product law a plain- against who treated the physicians 3, 303 S.E.2d 258 251 Ga. Wills and after an earlier tiffs mother before (though present in the factors not instant allegedly failed pregnancy. physicians case, a person in situations should be some dur- immunize the mother from rubella to duty of care an uncon- under a toward and the mother ing pregnancy, second her child). ceived pregnant while later contracted the rubella Despite approving the of cases number child, plaintiff. her third the with action, majority the of such a cause of suffering from rubella plaintiff was born persuasive reasoning of finds Albala it- syndrome, a which manifests condition (1981), 54 N.Y.2d City New York impair- physical mental self in severe 786. How- 445 N.Y.S.2d 429 N.E.2d ments. ever, proper application of the rationale Renslow, There, in court con- as was requires an employed Albala examina- duty. Mon- with the issue of fronted plaintiff facts. The was born tion its principles relied on fundamental usko court damage. suffering brain It was from law, “essentially noting that of tort alleged injuries his were the result of question of be- plaintiff’s performed on the an abortion injured person the actor and the tween During procedure, mother in 1971. any legal obligation of the gives rise to perforated the uterus of the defendants part for the benefit actor’s noted, majority mother. As the plaintiff’s and that the existence of person[,]” opinion prefaced court its with the Albala it is “whether foreseea- is based “the of a the statement create that the actor’s conduct ble of action these circumstances under victim, risk of harm to the and whether of traditional would intervening conduct and result of that beyond manageable tort Id., 437 N.W.2d causes were foreseeable.” 445 N.Y.S.2d boundsf.]” at 369. (emphasis supplied). 429 N.E.2d at much more plaintiff Albala was readily Concluding that it is foreseeable far less unforesee- remote and immunized could contract that someone not case, and, present than in the where if suf- able pregnant, bear child rubella pri- the Walker children syndrome, the court health of fering from rubella mary behind the administration concern the defendants owed determined that Thus, Rhogam. the Albala case drug and the administer test plaintiff a to distinguishable spec- and off the readily de- specifically immunization that was foreseeability.2 to who trum of signed prevent the harm children interpretation Jor- Jorgensen bility This fault. concluded that without 2. The Albala court determination, Jorgensen inapposite al- supra, gensen to its The court in is mistaken. prod- theory proceed was decided on plaintiffs inasmuch on each lowed the liability theory Iia- for which there is strict uct

1Q93 best, While not unmindful of the considera- Nathan. pleadings At deposi- espoused by majority, tions court conflicting tions are point. on this arguments also those policy should factor majority has resolved these conflicts extending liability. First, in favor of against Walkers, the nonmovants in the are courts loathe allow an to be summary judgment proceeding below. remedy. Bergstreser, suffered without This appropriate Court is not the venue for Second, supra, at Indiana resolving genuine issues of material fact. expressed have their reluctance immun- Majd Medical, Pour v. Basic American ize those in field from Inc., (1990), Ind.App., reh. performance particular for their in one denied. I judgment would reverse the practice. area of medical v. Foy Garrison the trial as to Nathan. (1985 Ind.App.), 8. See also Schroeder Perkel 87 N.J. (exoneration negligent practi-

A.2d 834 provide pro-

tioners would no deterrent Third, irresponsibility).

fessional disallow-

ing promote this cause of action could con- alleged

cealment negligence until the

two-year respect statute of limitations parent expired, it may in that years

more than two before the mother discovers, pregnant upon pre- becomes KOKOMO MEDICAL ARTS BUILDING testing upon natal the birth of the Savings PARTNERSHIP Pioneer that she has been sensitized. (De- Association, Appellants and Loan disagree I further hy- that “unlimited Below), fendants potheses accompanied by staggering impli- Albala, supra, cations are manifest.” N.Y.S.2d N.E.2d at WILLIAM AND HUTCHENS Where, perimeters 788. this ASSOCIATES, Appellee are limited to in which situations (Plaintiff Below). practitioner performs medical care for purpose safeguarding the health of No. 34A04-9004-CV-159. conceived, yet implica- children Indiana, Appeals Court of staggering tions are neither nor manifest. Fourth District. predominant among view have addressed issue that a Feb. person prior can be to a owed conception. agree, I person’s and would settings,

hold that limited factual such us,

as that found the case before provider

health care can owe such a person’s

and be held accountable for the provid- the result malpractice.

er’s although agree I

Finally, majori-

ty op- that Mr. and Mrs. Walker’s intervening, superseding

erated as an twins, respect

cause with to the Jennifer Kathy, agree parents I cannot knowledge

had Rh-sensitization conception

its ramifications j)rior claim, product liability including negli- gence.

of their

Case Details

Case Name: Walker v. Rinck

Court Name: Indiana Court of Appeals

Date Published: Feb 21, 1991

Citation: 566 N.E.2d 1088

Docket Number: 64A03-8906-CV-226

Court Abbreviation: Ind. Ct. App.