(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued September 13, 1999 -- Decided January 25, 2000
STEIN, J., writing for a unanimous Court.
This appeal presents an issue of first impression concerning recognition of and limitations on a physician's liability
for a preconception tort allegedly resulting in harm to a child conceived after the negligence occurred. In connection with
its resolution of this appeal, the Court considers whether the parents' voluntary act of conception, although aware of an
increased risk of harm to a child born of the pregnancy, is a superseding cause that relieves the physician of liability, and,
further, whether communication of an adequate warning of the increased risk of harm by the negligent physician or by
others limits the physician's liability.
This appeal arises from a medical malpractice action against Drs. Laurence M. Scheininger and Lawrence A.
Seitzman for obstetrical services rendered to Gale Lynch during a 1984 pregnancy that terminated in a stillbirth. The
uncontroverted medical evidence at trial in that matter established that the 1984 stillbirth was attributable to erythroblastosis
fetalis, a condition of fetus caused by the incompatibility of maternal and fetal blood Rh factors. The process resulting in
erythroblastosis fetalis, known as Rh isoimmunization, can be prevented by a drug called Rhogam if it is administered
before the mother's immune system reacts to the incompatible fetal blood by producing antibodies to attack them. Dr.
Scheininger acknowledged that he did not diagnose Mrs. Lynch's Rh isoimmunization during the 1984 pregnancy, and that
his failure to treat her for that condition was a factor that resulted in the stillbirth of the infant boy named Brian.
In 1986, Mrs. Lynch and her husband instituted a malpractice action against Dr. Scheininger and others to recover
damages relating to the stillbirth. While that action was pending, Mrs. Lynch gave birth to Joseph Lynch on January 11,
1987. Joseph was born with significant and permanent neurological disabilities caused by erythroblastosis fetalis, the very
condition that led to the 1984 stillbirth. Although Mrs. Lynch and her husband moved to amend their complaint in the suit
arising out of the stillbirth to assert damage claims relating to Joseph's birth, that motion was denied. Therefore, the
Lynches instituted a second action against Drs. Scheininger, Seitzman, and others, alleging that their failure to diagnose and
treat Mrs. Lynch's Rh isoimmunization during her 1984 pregnancy resulted in an intensification of that isoimmunization that
increased the risk of harm to children subsequently conceived. In that second suit, the Lynches asserted a claim of wrongful
birth on their own behalf, a claim of “wrongful life” on Joseph's behalf based on the doctors' alleged failure to inform them
of the risks of a future pregnancy, and a claim on Joseph's behalf alleging that the doctors' malpractice during the 1984
pregnancy was a substantial a contributing cause of Joseph's severe impairments and resultant medical and other expenses.
In 1992, while the second action was pending, the earlier suit against Dr. Scheininger relative to the 1984 stillbirth
was settled, with an express reservation of the claims asserted against Dr. Scheininger in the second action. During the
course of trial in the second action, the Law Division conducted a Lopez hearing, in response to the doctors' contention that
the wrongful birth claim was barred by the two-year statute of limitations because the suit was not instituted within two
years of Joseph's birth. The Lynches relied on the “discovery rule,” contending that they did not become aware of the
connection between Joseph's impairments and the doctors' 1984 negligence until they received the report of their expert in
October 1989. At the conclusion of the Lopez hearing, the trial court determined that the Lynches knew or should have
known at the time of Joseph's birth of their potential claim against the doctors for Joseph's impairments, and consequently
dismissed the Lynches' wrongful birth claim. The trial court also dismissed Joseph's wrongful life claim at the close of the
Lynches' case, concluding that the evidence adduced at trial could not support a jury finding that the Lynches relied on the
doctors' advice in deciding to conceive another child.
Two significant factual issues were sharply contested at trial. The first one concerned whether the doctors' alleged
malpractice during the 1984 pregnancy was a proximate cause of Joseph's disabilities. The second one concerned when the
Lynches acquired knowledge that Mrs. Lynch's Rh isoimmunization posed a danger to the health of children born as a result
of pregnancies subsequent to the 1984 stillbirth. After a twenty-three day trial, the trial court submitted the case to the jury,
reserving decision on the doctors' motions to dismiss Joseph's malpractice claim. However, the jury was unable to reach a
verdict.
Subsequently, in an unpublished opinion on the reserved motions, the trial court presumed that New Jersey would
recognize a cause of action of a “preconception tort,” characterized as a claim that a doctor's negligence caused damage to a
woman's reproductive system resulting in harm to a child conceived after that negligence occurred. However,
mischaracterizing its own finding at the Lopez hearing, the trial court determined that because it had determined that the
Lynches were aware of the risks presented by Mrs. Lynch's Rh negative condition prior to Joseph's conception, that finding
constituted an adjudication on the merits of the issue of when they knew that the condition posed a risk to future
pregnancies. Based on that reasoning, the trial court held that the Lynches' intentional conception of Joseph with that
knowledge constituted a supervening cause of Joseph's condition that barred imposition of liability on Dr. Scheininger.
On appeal, the Appellate Division affirmed the trial court's dismissal of the Lynches' wrongful birth claim on the
ground that it was not filed within two years of Joseph's birth. The court also affirmed the dismissal of Joseph's “wrongful
life” claim. However, the Appellate Division reversed the trial court's dismissal of Joseph's malpractice cause of action
against Dr. Scheininger. While not disputing the trial court's mischaracterization of its Lopez ruling (that the Lynches were
aware of the risks prior to Joseph's conception), the court concluded that that finding was not subject to collateral estoppel
on the reserved motion to dismiss Joseph's claims because it was not necessary to support the court's determination to
dismiss the parents' wrongful birth claim. The Appellate Division further found that the Lynches' voluntary decision to
conceive another child did not constitute a supervening cause of Joseph's disabilities and that Joseph, therefore, was not
precluded from pursuing his malpractice action against Dr. Scheininger. Because the Appellate Division found sharply
conflicting evidence concerning what warnings were communicated to the Lynches about the risks of a future pregnancy, it
declined to decide whether Dr. Scheininger would be insulated from liability if the Lynches knew prior to conceiving Joseph
that there was a high likelihood that a child of a subsequent pregnancy would be born with serious disabilities.
The Supreme Court granted Dr. Scheininger's petition for certification.
HELD: New Jersey recognizes an action based on preconception negligence or tort; in the absence of knowledge of a high
level risk of harm to a child born of a pregnancy, parents' voluntary act of conception does not constitute a superseding
cause that will relieve a physician of liability for his or her prior negligence; liability may be apportioned pursuant to
doctrine of avoidable consequences if parents' voluntary act of conception occurred when parents knew of an d assumed
less than a high risk that the child either would not survive or would be born with serious disabilities.
1. In determining what constitutes a superseding cause, New Jersey courts have focused on the specific facts and
circumstances that raise the issue, regardless of whether the intervening event involved negligence or intentional conduct by
others. (pp. 22-28)
2. A doctrine that may be implicated on retrial is that of avoidable consequences, a doctrine that focuses on diminution of
damages on the basis of a plaintiff's failure to avoid the consequences of a defendant's tortious conduct after that conduct
has occurred. (pp. 28-32)
3. New Jersey recognizes a medical malpractice cause of action based on preconception negligence that allegedly resulted
in injury to a child conceived after the negligence occurred. New Jersey's proximate cause jurisprudence is sufficiently
flexible to bar claims for injuries that are unreasonably remote in relation to a defendant's negligence. (pp. 32-35)
4. Despite the stillbirth that terminated the 1984 pregnancy, the Lynches decision to conceive another child was foreseeable
in the absence of information or a warning that a subsequent pregnancy involved risks of such magnitude that a high
likelihood existed that the child either would not survive or would be born with serious disabilities. However, if on retrial a
factual issue is presented about whether the Lynches knew of that high likelihood, such a finding would supersede the
doctor's liability for his prior negligence. (pp. 35-38)
5. On retrial, if evidence is adduced that would permit the jury to find that the risks of another pregnancy were significant
enough that the Lynches' decision to conceive Joseph, although foreseeable, constituted a deliberate election not to avoid
the known but unquantified risk of future injury, the jury may be instructed to consider that evidence as bearing on the
apportionment of responsibility for Joseph's injuries under the avoidable consequences doctrine. (pp. 38-43)
6. Depending on the record at retrial, should the trial court determine to instruct the jury to apportion responsibility for
Joseph's injuries in accordance with the doctrine of avoidable consequences, then the trial court should permit the jury to
treat the Lynches' election to conceive Joseph and bear the risk of an adverse result as fault-based for purposes of the jury's
allocation of responsibility for Joseph's damages. (pp. 43-44)
7. Although permitting the parent's willingness to bear the risk of conception to bear on a child's recovery of damages may
stretch the contours of traditional applications of comparative fault, that apportionment of responsibility for the child's
injuries reflects a pragmatic evaluation of the respective alleged causes of those injuries. (pp. 44-45)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law Division for
further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, COLEMAN, LONG, and VERNIERO join in
JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
57 September Term 1998
GALE ANN LYNCH and ROBERT LOUIS
LYNCH, her husband, and JOSEPH
LYNCH, an infant, by his Guardians
ad Litem, GALE ANN LYNCH and ROBERT
LOUIS LYNCH, and GALE ANN LYNCH and
ROBERT LOUIS LYNCH, individually and
per quod,
Plaintiffs-Respondents,
v.
LAURENCE M. SCHEININGER, M.D.,
Defendant-Appellant,
and
ESTATE OF JERROLD S. FINKEL, M.D.,
PAUL DRUCKER, M.D., LAWRENCE A.
SEITZMAN, M.D., DRS. FINKEL, DRUCKER
& SEITZMAN, PROFESSIONAL ASSOCIATION,
DRUCKERS, SEITZMAN &
SCHEININGER PROFESSIONAL ASSOCIATION,
either a corporation, partnership,
individual
proprietorship, JOHN F. KENNEDY
MEDICAL CENTER, and STEPHEN A.
GROCHMAL, M.D.,
Defendants.
Argued September 13, 1999 -- Decided January 25, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
314 N.J. Super. 318 (1998).
Hugh P Francis argued the cause for appellant
(Francis & O'Farrell, attorneys; Mr. Francis
and John O'Farrell of counsel; Beth A. Hardy,
on the briefs).
Richard C. Swarbrick argued the cause for
respondents.
The opinion of the Court was delivered by
STEIN, J.
This appeal presents an issue of first impression concerning
recognition of and limitations on a physician's liability for a
preconception tort allegedly resulting in harm to a child
conceived after the negligence occurred. The questions that
primarily will determine our resolution of this appeal are first,
whether the parents' voluntary act of conception, although aware
of an increased risk of harm to a child born of the pregnancy, is
a superseding cause that relieves the physician of liability, and
second, whether communication of an adequate warning of the
increased risk of harm by the negligent physician or by others
limits the physician's liability.
Reversing the Law Division and remanding the matter for a
new trial on the infant's malpractice claim, the Appellate
Division in a published opinion, Lynch v. Scheininger,
314 N.J.
Super. 318 (App. Div. 1998), held that the parent's "voluntary
decision to conceive another child did not constitute a
supervening cause" that precluded the child from maintaining a
malpractice claim to recover damages for devastating and
irremediable birth defects allegedly caused in part by the
preconception negligence of the mother's physician during a prior
pregnancy. Id. at 329. In that court's view, the evidence of
the extent of the parents' knowledge of the risk of harm to
children of subsequent pregnancies was "sharply conflicting."
Accordingly, the Appellate Division did not decide whether
voluntary conception coupled with knowledge that a child of a
subsequent pregnancy was highly likely to be born with serious
disabilities would insulate the physician from liability. Id. at
330-31.
This medical malpractice action against defendants Laurence M. Scheininger and Lawrence A. Seitzman, arises out of obstetrical services rendered by them to plaintiff Gale Lynch during a 1984 pregnancy that terminated in a stillbirth. (Other named defendants either were not served or were dismissed from the litigation before the jury verdict.) The uncontradicted medical evidence at trial established that the 1984 stillbirth was attributed to erythroblastosis fetalis, a condition of the fetus caused by the incompatibility of maternal and fetal blood Rh factors. The record indicates that Mrs. Lynch's blood is Rh negative and that the blood of the baby she carried to term in 1984 was Rh positive. According to the medical testimony, when a mother's Rh negative blood is exposed to the Rh positive blood of her fetus the mother's immune system reacts as if the fetal blood were a foreign substance, producing antibodies to attack the fetal blood cells. That process, called Rh isoimmunization, can be prevented by a drug called Rhogam if it is administered before antibodies are produced and isoimmunization occurs. Once it occurs, however, isoimmunization is irreversible. Erythroblastosis fetalis, the condition resulting from the effects of the mother's Rh isoimmunization on the fetus, occurs when the mother's and fetus' blood combine causing the mother's antibodies to destroy red blood cells of the fetus. The fetus' attempt to compensate for destruction of its red blood cells by overproducing more blood cells can lead to organ failure or eventual death if the fetus is not given blood transfusions or delivered prematurely.
Mrs. Lynch had delivered two healthy children during a prior marriage. When she became pregnant in 1984 her obstetrician was Dr. Jerrold Finkel, who died during that pregnancy. Dr. Scheininger, who practiced with Dr. Finkel, assumed responsibility for her care. Dr. Scheininger has acknowledged that he did not diagnose Mrs. Lynch's Rh isoimmunization during the 1984 pregnancy, and that his failure to treat her for that condition was a factor that resulted in the stillbirth of an infant boy named Brian.
In 1986 Mrs. Lynch and her husband Robert instituted a malpractice suit against Dr. Scheininger and others to recover damages relating to the stillbirth. While that action was pending, Mrs. Lynch gave birth to plaintiff Joseph Lynch on January 11, 1987. Tragically, Joseph was born with significant and permanent neurological disabilities, and the evidence is undisputed that those disabilities were caused by erythroblastosis fetalis, the condition that led to the 1984 stillbirth. In January 1990, plaintiffs moved to amend their complaint in the suit arising out of the stillbirth to assert damage claims relating to Joseph's birth. When that motion was denied, plaintiffs instituted this action against Drs. Scheininger, Seitzman, and others, alleging that defendants' failure to diagnose and treat Mrs. Lynch's Rh isoimmunization during her 1984 pregnancy resulted in an intensification of that isoimmunization that increased the risk of harm to children subsequently conceived. In the second suit plaintiffs asserted a claim of wrongful birth on their own behalf, see Procanik v. Cillo, 97 N.J. 339, 348 (1984), a claim of “wrongful life” on Joseph's behalf based on defendants' alleged failure to inform them of the risks of a future pregnancy, see ibid., and a claim on Joseph's behalf alleging that defendants' malpractice during the 1984 pregnancy was a substantial contributing cause of Joseph's severe impairments and resultant medical and other expenses.
In 1992, while this action was pending, the earlier suit against Dr. Scheininger seeking damages arising from the 1984 stillbirth was settled, but the release executed by plaintiffs in connection with that settlement expressly excluded the claims asserted against Dr. Scheininger in the present action. During the course of this action plaintiffs also settled their claims against Dr. Stephen Grochmal, the treating doctor during Mrs. Lynch's pregnancy with Joseph, who was joined as a defendant after Dr. Scheininger filed a third-party complaint against him.
During the course of trial, the Law Division conducted a Lopez hearing, see Lopez v. Swyer, 62 N.J. 267 (1973), in response to defendants' contention that the wrongful birth claim asserted by Mr. and Mrs. Lynch was barred by the two-year statute of limitations because this suit was not instituted until January 23, 1990, more than two years after Joseph's birth on January 11, 1987. The Lynches relied on the “discovery rule” articulated in Lopez, id. at 272, contending that they were unaware of the connection between defendants' 1984 negligence and Joseph's neurological impairments until October 1989, when they received the report of their expert, Dr. Stefan Semchyshyn. At the conclusion of the Lopez hearing the trial court determined that plaintiffs knew or should have known at the time of Joseph's birth of their potential claim against defendants for Joseph's injuries, and consequently dismissed the Lynches' wrongful birth claim. The trial court also dismissed Joseph's wrongful life claim at the close of plaintiffs' case, concluding that the evidence adduced at trial could not support a jury finding that the Lynches relied on defendants' advice in deciding to conceive another child.
Our careful review of the record reveals that the trial of this matter was unusually contentious, in large part because of the belligerent and unruly tactics of plaintiffs' counsel.See footnote 11 Two significant factual issues were sharply contested. The first concerned whether defendants' alleged malpractice during the 1984 pregnancy was a proximate cause of Joseph's disabilities. Plaintiffs' expert, Dr. Semchyshyn, testified that defendants' failure properly to treat Mrs. Lynch's Rh isoimmunization by transfusion and early delivery of the fetus had the effect of increasing the extent of her isoimmunization with resultant detrimental effects on Joseph during the 1987 pregnancy.
Dr. Anthony Quartell, defendants' expert, testified that although Mrs. Lynch's isoimmunization increased during the course of the 1984 pregnancy, the only noteworthy increase occurred when the placenta pulled away from the mother during delivery causing a significant flow of the baby's blood into the mother. According to Dr. Quartell, that process would have occurred no matter how the 1984 pregnancy terminated and was not significantly influenced by defendants' treatment of Mrs. Lynch. His opinion was that defendants' deviations in 1984 caused harm to the infant born of that pregnancy, but did not contribute to Joseph's disabilities. He expressed the view that Mrs. Lynch's miscarriage in 1985 also increased her isoimmunization, an assertion that was disputed by Dr. Semchyshyn.
Significantly, Dr. Quartell expressed the opinion that, notwithstanding Mrs. Lynch's increased isoimmunization, appropriate management of the 1987 pregnancy could have avoided the harm to Joseph. According to Dr. Quartell, appropriate management of that pregnancy would have required periodic measurement of the Rh antibody concentration in Mrs. Lynch's blood, periodic withdrawal of fluid from the amniotic cavity to measure the extent of bilirubin in the amniotic fluid in order to determine the extent of the damage to the fetus' red blood cells, administration of intrauterine transfusions to the fetus, and early delivery of the fetus to diminish the harm to the fetus' red blood cells caused by the mother's isoimmunization.
The second issue that was sharply contested at trial concerned when the Lynches acquired knowledge that Mrs. Lynch's Rh isoimmunization posed a danger to the health of children born as a result of pregnancies subsequent to the 1984 stillbirth. Mrs. Lynch maintained that she first acquired that knowledge in October 1989 when she received and read the report of her expert, Dr. Semchyshyn. She testified at trial that after the 1984 stillbirth Dr. Seitzman visited her at the hospital and told her that she should not conceive another baby “at this time,” which she understood to mean that she should allow time to heal and recuperate from the 1984 stillbirth before conceiving another child. She acknowledged that shortly after the stillbirth she consulted with a Philadelphia physician specializing in high-risk pregnancies, and subsequently consulted with Doctors Harrigan, Grochmal, and Choppe at the St. Peter's Neonatal Clinic. While under the care of those doctors she became pregnant in 1985, but miscarried after a few weeks. She testified that none of the doctors at the St. Peter's clinic discussed erythroblastosis fetalis or cautioned her against future pregnancies. The uncontested trial testimony revealed that Dr. Grochmal, who left the St. Peter's clinic to establish his own practice and cared for Mrs. Lynch during her 1987 pregnancy with Joseph, also failed to recognize and treat her Rh isoimmunization during that pregnancy.
Defendants contended that the Lynches were aware of a possible connection between the 1984 pregnancy and the 1987 pregnancy long before receiving Dr. Semchyshyn's report in October 1989. Defendants primarily relied on the autopsy report of the 1984 stillbirth that recorded the cause of death as erythroblastosis fetalis, plaintiffs' subsequent consultations with specialists in high-risk pregnancies, a newspaper article published in April 1987 that described Joseph's disabilities and their medical cause, and statements allegedly made by Dr. Grochmal before Joseph's birth criticizing defendants for failing to prescribe Rhogam for Mrs. Lynch. As noted, supra at ___ (slip op. at 7), at the conclusion of the Lopez hearing the trial court, on the basis of defendants' contentions, concluded that the Lynches' wrongful birth action accrued on January 11, 1987 when Joseph was born, and accordingly was barred by the two-year statute of limitations.
After a twenty-three day trial, the trial court submitted the case to the jury, reserving decision on defendants' motions to dismiss Joseph's malpractice claims. The jury, however, was unable to reach a verdict.
In an unpublished opinion on the reserved motions, the trial court presumed that New Jersey courts would recognize a cause of action for a “preconception tort,” characterized as a claim that a doctor's negligence caused damage to a woman's reproductive system resulting in harm to a child conceived after the negligence occurred. However, the trial court asserted that the Lopez hearing had resulted in a finding that “plaintiffs were aware of the risks presented by Mrs. Lynch's Rh negative condition prior to [Joseph's] conception.” (We note our disagreement with the trial court's characterization of its own finding at the Lopez hearing. As we read the record, at the conclusion of the Lopez hearing the trial court determined only that plaintiffs' wrongful birth cause of action accrued as of the date of Joseph's birth.) The trial court then determined that, based on collateral estoppel, its finding at the Lopez hearing constituted an adjudication on the merits of when plaintiffs knew that Mrs. Lynch's Rh condition posed a risk to future pregnancies. Based on that reasoning, the trial court held that plaintiffs' intentional conception of Joseph with knowledge of a risk presented by Mrs. Lynch's Rh negative blood constituted a supervening cause of Joseph's condition that barred imposition of liability on defendant Scheininger.
The Appellate Division affirmed the trial court's dismissal of the Lynches' wrongful birth claim on statute of limitations grounds. That court also affirmed the dismissal of Joseph's “wrongful life” claim, as well as plaintiffs' claims against Dr. Seitzman because of a lack of proof of his malpractice. The Appellate Division reversed, however, the trial court's judgment dismissing Joseph's malpractice cause of action against Dr. Scheininger.
Preliminarily, although not disputing the trial court's characterization of its Lopez hearing finding as establishing that plaintiffs were aware of the risks presented by Mrs. Lynch's Rh negative condition prior to Joseph's conception, the Appellate Division concluded that that finding was not subject to collateral estoppel on the motion to dismiss Joseph's claims because it was not necessary to support the court's determination to dismiss the parents' wrongful birth claim. 314 N.J. Super. at 326-27 n.6. As that court explained, the dismissal of that claim could be justified by the trial court's finding that the Lynches knew of the causal connection between Mrs. Lynch's Rh negative blood and Joseph's disabilities at the time of Joseph's birth. Ibid. For similar reasons the Appellate Division rejected the trial court's reliance on the law of the case doctrine, concluding that that doctrine was inapplicable because the factual and legal issues resolved at the Lopez hearing “were different from the issue presented by defendants' motion to dismiss plaintiffs' claim.” Ibid. We agree with the Appellate Division's view on the collateral estoppel and law of the case issues although, as noted earlier, we are unable to conclude that the trial court found at the Lopez hearing that prior to Joseph's conception plaintiffs were aware of the risks posed by Mrs. Lynch's Rh negative blood.
Impliedly accepting the trial court's conclusion that New Jersey courts generally would recognize a claim for malpractice based on preconception negligence, the Appellate Division focused on whether, assuming the Lynches knew prior to Joseph's conception that Mrs. Lynch's Rh blood created a greater than normal risk for future pregnancies, that knowledge would bar Joseph's claims against Dr. Scheininger. The Appellate Division observed that it was “reasonably foreseeable that a married couple would attempt to conceive additional children [notwithstanding the fact that] a doctor's malpractice in connection with a prior pregnancy has increased the risk that a child born of a subsequent pregnancy will suffer abnormalities.” Id. at 328-29. Accordingly, that court concluded that the Lynches' “voluntary decision to conceive another child did not constitute a supervening cause of Joseph's disabilities,” and therefore Joseph was not precluded from pursuing his malpractice action against Dr. Scheininger. Id. at 329. Because that court found “sharply conflicting” the evidence concerning what warnings were communicated to the Lynches about the risks of a future pregnancy, it declined to decide whether Dr. Scheininger would be insulated from liability if the Lynches knew prior to conceiving Joseph that there was a high likelihood that a child of a subsequent pregnancy would be born with serious disabilities. Id. at 330-31.
A
A brief review of the law concerning recovery for prenatal torts in general, and preconception torts specifically, will illuminate the issue. Prior to 1946, decisions throughout the country uniformly denied recovery for claims asserted by a child alleging injury at birth that was caused by negligently inflicted harm to the child's mother during pregnancy. W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 55 at 367 (5th ed. 1984) (Prosser and Keeton). The reasons generally advanced for denying recovery were, first, that the defendant owed no duty to a person not in existence when the negligence occurred; and second, because proof of causation in such circumstances was imprecise, recognition of a cause of action would encourage the filing of spurious claims. Ibid.
Beginning with Bonrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946), a District of Columbia federal court decision, courts through the country abandoned the no-duty rule, and virtually all jurisdictions presently recognize a child's cause of action for the consequences of prenatal injuries. Prosser and Keeton, supra, at 368. This Court so held in Smith v. Brennan, 31 N.J. 353 (1960). Several commentators have thoroughly reviewed the development of the case law resulting in the abandonment of the no-duty rule in prenatal tort cases. See Elizabeth F. Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth: Time for a New Framework, 22 J. Fam. L 677 (1983/84); Anastasia Enneking, The Missouri Supreme Court Recognizes Preconception Tort Liability: Lough v. Rolla Women's Clinic, Inc., 63 UMKC L. Rev. 165 (1994); Horace B. Robertson, Jr., Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1 978 Duke L.J. 1401 (1978); Note, Preconception Tort as a Basis for Recovery, 60 Wash. U. L.Q., 275 (1982).
The earliest reported cases recognizing a child's malpractice cause of action based on preconception negligence were decided in the 1970s. In Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir. 1973), a federal Court of Appeals applying Oklahoma law reinstated a complaint seeking damages on behalf of a deceased child, and a living mongoloid child whose birth deformities allegedly were caused by birth control pills taken by the mother prior to pregnancy. Rejecting the District Court's view that tortious conduct prior to conception is not actionable, absent legislative authorization, by an infant injured by the wrong, the Court of Appeals observed that under that analysis “an infant suffering personal injury from a defective food product, manufactured before his conception, would be without remedy.” Id. at 240. The Court of Appeals concluded that Oklahoma courts would recognize a preconception tort cause of action. Ibid. Similarly, in Bergstreser v. Mitchell, 577 F.2d 22 (8th Cir. 1978), another federal Court of Appeals, applying Missouri law, upheld a preconception tort cause of action by a child who alleged that defendants' malpractice in performing a Caesarean section on the mother during a prior pregnancy caused her uterus to rupture during her subsequent pregnancy with plaintiff, resulting in premature delivery and serious impairments. Acknowledging the lack of authoritative precedent, the Court of Appeals concluded on the basis of Missouri caselaw concerning prenatal injuries that Missouri courts would recognize a cause of action based on a preconception tort. Id. at 25-26.
Renslow v. Mennonite Hospital, 367 N.E.2d 1250 (Ill. 1977), was the first of several preconception tort cases that implicated erythroblastosis fetalis, the condition that caused the injuries for which Joseph Lynch seeks damages. In Renslow, a mother who had Rh negative blood was transfused in 1965 with Rh positive blood by defendant, resulting in 1974 in the premature birth and severe damage to her infant child because of the mother's Rh isoimmunization. Defendant contended that at the time of the transfusion it owed no duty to the infant plaintiff, and that because the mother was transfused at the age of thirteen her subsequent pregnancy approximately eight years later was an unforeseeable intervening act. Id. at 1253. Defendant also stressed that the potential for indeterminate liability for a single wrongful act argued against recognition of a preconception tort cause of action. Id. at 1255. Rejecting defendant's contentions, the Illinois Supreme Court, 4-3, remanded the case for trial observing that “it is not necessary that the legal duty be owed to one in existence at the time of the wrongful act.” Id. at 1256.
A number of cases from other jurisdictions subsequently have recognized malpractice causes of action based on preconception torts. See, e.g., Empire Casualty Co. v. St. Paul Fire and Marine Ins. Co., 764 P.2d 1191 (Colo. 1988) (recognizing cause of action for preconception tort based on allegation that obstetrician's mismanagement of mother's prior pregnancy including failure to diagnose and test mother's Rh isoimmunization was proximate cause of severe injuries to child of subsequent pregnancy); Walker v. Rinck, 604 N.E.2d 591 (Ind. 1992) (recognizing causes of action for preconception tort by children of subsequent pregnancies who sustained injuries caused by erythroblastosis fetalis because of laboratory's and physician's failures during prior pregnancies to identify mother's Rh negative blood and to prescribe Rhogam); Monusko v. Postle, 437 N.W.2d 367 (Mich. App. 1989) (recognizing preconception tort cause of action for child born with rubella syndrome based on allegations that physicians who treated mother during earlier pregnancy failed to test or immunize mother for rubella); Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851 (Mo. 1993) (recognizing infant's preconception tort claim based on allegations that medical center's misidentification of mother's Rh negative blood as Rh positive led to doctor's failure to administer Rhogam following earlier pregnancy causing mother's Rh isoimmunization to inflict severe damage to child of subsequent pregnancy); Graham v. Keuchel, 847 P.2d 342 (Okla. 1993) (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).
Two New York Court of Appeals decisions have declined to recognize preconception tort causes of action, one in a medical malpractice suit and the other in a strict liability context. In Albala v. City of New York, 429 N.E.2d 786 (N.Y. 1981), characterized as a “thinly reasoned case,” Prosser and Keeton, supra, at 369, an action on behalf of a brain-damaged infant plaintiff was based on allegations that his mother, four years prior to his conception, underwent an abortion at Bellevue Hospital in the course of which her uterus was perforated. The complaint alleged that defendants' malpractice in perforating her uterus was a proximate cause of the injuries to her infant child during the subsequent pregnancy. Affirming the lower courts' dismissal of the claim, the Court of Appeals declined to recognize a preconception tort cause of action, observing that “[t]he perimeters of liability although a proper legislative concern, in cases such as these, cannot be judicially established in a reasonable and practical manner.” Id. at 788. In Enright v. Eli Lilly & Co., 570 N.E.2d 198 (N.Y.), cert. denied, 502 U.S. 868, 112 S. Ct. 197, 116 L. Ed.2d 157 (1991), the issue presented was whether the liability of manufacturers of the drug diethylstilbesterol (DES) should extend to the granddaughter of a woman who ingested the drug. Plaintiffs Karen Enright and her parents, Patricia and Earl, alleged that Karen's maternal grandmother ingested DES during a pregnancy that resulted in Patricia's birth, and that because of Patricia's in utero exposure to DES she developed deformities in her reproductive system. Those deformities allegedly resulted in the premature birth of Karen who suffers from cerebral palsy and other disabilities. Declining to recognize a preconception strict liability cause of action, the Court of Appeals concluded that Karen's reliance on preconception harm caused by her mother's in utero exposure to DES posed the same vexing questions with the same “staggering implications” as did Albala, supra. Id. at 203.
In view of our ultimate disposition of this appeal, and because we agree with the Appellate Division's holding that neither on the basis of collateral estoppel nor the law of the case doctrine can the trial court's determination at the Lopez hearing constitute an adjudication on the merits of the extent of the Lynches' knowledge of the risk posed by Mrs. Lynch's Rh condition at the time of Joseph's conception, that factual question will have to be adjudicated at the retrial. Nevertheless, the Appellate Division's disposition requires us to consider the issue of superseding cause.
The general principles governing intervening and superseding causes are well settled. Only their application is difficult. The Restatement's definition of superseding cause is simple and straightforward: `
A superseding cause relieves the actor from liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the harm. Therefore, if in looking back from the harm and tracing the sequence of events by which it was produced, it is found that a superseding cause has operated, there is no need of determining whether the actor's antecedent conduct was or was not a substantial factor in bringing about the harm.
[Restatement (Second) of Torts § 440 comment b (1965).]
The conceptual issue whether an intervening cause should relieve a defendant of responsibility for his or her prior negligence has been accurately characterized as a question of policy and fairness:
On its face, the problem is one of whether the defendant is to be held liable for an injury to which the defendant has in fact made a substantial contribution, when it is brought about by a later cause of independent origin, for which the defendant is not responsible. In its essence, however, it becomes again a question of the extent of the defendant's original obligation; and once more the problem is not primarily one of causation at all, since it does not arise until cause in fact is established. It is rather one of the policy as to imposing legal responsibility. The older cases tend to ask the question, why should the defendant be held liable for harm brought about by something for which the defendant is not responsible? The later ones tend to ask instead, why should the defendant be relieved of liability for something as to which the defendant's conduct is a cause, along with other causes? For this reason, the Restatement has stated the problem in terms of whether there is a superseding cause.
[Prosser and Keeton, supra, § 44 at 301.]
Because the number and kinds of causes that can intervene after a defendant's negligence are virtually without limit, courts have attempted to resolve questions of superseding cause by focusing on whether the intervening cause is so closely connected with the defendant's negligent conduct that responsibility should not be terminated. Id. at 302. The shorthand term for that inquiry is whether the intervening cause is “foreseeable,” an undefined term covering a “multitude of sins.” Ibid.
The Restatement of Torts has attempted to categorize factors that influence the decision to treat an intervening event as a superseding cause:
The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances
existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
[Restatement (Second) of Torts § 442 (1965).]
Our caselaw reflects a pragmatic application of the doctrine of superseding cause, focusing on the specific facts and circumstances that raise the issue irrespective of whether the intervening event involved negligent or intentional conduct by others. In Rappaport v. Nichols, 31 N.J. 188, 192 (1959), for example, plaintiff, individually and as administratrix of the estate of Arthur Rappaport, sought damages from the owners of several taverns that knowingly had sold liquor to an intoxicated minor whose subsequent negligent operation of a motor vehicle was responsible for Rappaport's death. The tavern owners contended that, even if their conduct was unlawful and negligent, the minor's intervening negligent operation of his automobile was a superseding cause that extinguished their liability. Id. at 203. Rejecting that contention and reinstating plaintiffs' cause of action, this Court observed:
The defendants contend that, assuming their conduct was unlawful and negligent as charged in the complaint, it was nevertheless not the proximate cause of the injuries suffered. But a tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries. The fact that there were also intervening causes which were foreseeable or were normal incidents of the risk created would not relieve the tortfeasor of liability. Ordinarily these questions of proximate and intervening cause are left to the jury for its factual determination.
[Ibid. (citations omitted).]
See also, J.S. v. R.T.H.,
155 N.J. 330, 352 (1998) (holding that
prolonged sexual abuse of neighboring adolescent girls by
defendant's husband with known proclivity for such behavior
not a superseding cause of wife's negligent failure to warn
victims or take other reasonable steps to prevent harm to them);
Cowan v. Doering,
111 N.J. 451, 465-66 (1988) (affirming judgment
after jury verdict for plaintiff hospitalized after overdosing on
sleeping pills in earlier suicide attempt who claimed that
physicians, nurses, and hospital negligently failed to prevent
her jumping from second-story hospital room, and holding that
issue whether plaintiff's leap from hospital room constituted
superseding cause insulating defendants from liability properly
was submitted to trial jury for resolution); Parks v. Pep Boys,
282 N.J. Super. 1, 8-12 (App. Div. 1995) (affirming denial of
summary judgment on liability and holding that question whether
decedent's voluntary inhalation of Freon sold by defendant to
decedent's fourteen-year-old companion constituted superseding
cause that barred defendant's liability for negligent sale of
Freon raised causation issue for determination by jury at trial).
In other contexts, our courts have determined that
intervening events constituted superseding causes as a matter of
law, where such events were sufficiently extraordinary or so
clearly unrelated to the antecedent negligence that imposition of
liability would be unreasonable. See Caputzal v. Lindsay Co.,
48 N.J. 69, 77-80 (1966) (holding that even if defect in water
softener caused rusty discoloration of water, manufacturer was
not liable to plaintiff who suffered idiosyncratic and
unanticipated heart attack brought on by fright at sight of
discolored water); Meyer v. Board of Ed. of Middletown Twp.,
9 N.J. 46, 54-55 (1952) (affirming directed verdict for defendants
and holding that even assuming school board's negligence in
failing to install guard over belt-drive mechanism of power jig
saw, intervening act of classmate in throwing electric switch
that started jig saw while plaintiff was cleaning it constituted
superseding cause that broke chain of causation and insulated
school board from liability); Glaser v. Hackensack Water Co.,
49 N.J. Super. 591, 600-01 (App. Div. 1958) (holding that water
company whose employee entered plaintiffs' garage without notice
to read meter was insulated from liability by intervening act of
plaintiff who became frightened for safety of infant daughter and
injured herself while running down stairs to first floor to
ascertain who had entered garage).
[Southport Transit Co. v. Avonale Marine Ways, Inc., 234 F.2d 947, 952 (5th Cir. 1956) (footnotes omitted).]
We cannot improve on Justice O'Hern's explanation of the doctrine of avoidable consequences in Ostrowski v. Azzara, 111 N.J. 429, 437 (1988):
Related in effect, but not in theory, to the doctrine of contributory negligence is the doctrine of avoidable consequences. This doctrine has its roots in the law of damages. It has application in the law of contract, as well as in the law of torts. N.J. Indus. Properties, Inc. v. Y.C. & V.L., Inc., 100 N.J. 432, 461 (1985) (Stein, J., dissenting) (quoting 5A Corbin, Contracts § 1039 at 241 (1964)). The doctrine proceeds on the theory that a plaintiff who has suffered an injury as the proximate result of a tort cannot recover for any portion of the harm that by the exercise of ordinary care he could have avoided. See W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on The Law of Torts § 65 at 458-59 (5th Ed.1984) (hereinafter Prosser and Keeton); 62 A.L.R.3d 9 (1975) (discussing duty to minimize tort damages by surgery). It has a simple thesis of public policy:
[I]t is not true that the injured person has a duty to act, nor that the conduct of the tortfeasor ceases to be a legal cause of the ultimate harm; but recovery for the harm is denied because it is in part the result of the injured person's lack of care, and public policy requires that persons should be discouraged from wasting their resources, both physical or economic. [Restatement (Second) of Torts § 918 at 500, comment a.]
Avoidable consequences, then, normally comes into action when the injured party's carelessness occurs after the defendant's legal wrong has been committed. Contributory negligence, however, comes into action when the injured party's carelessness occurs before defendant's wrong has been committed or concurrently with it. Prosser and Keeton, supra, § 65 at 458-59; see also Ayers v. Jackson Township, 106 N.J. 557, 603 (1987) ("'under the "avoidable consequences rule," [a claimant] is required to submit to treatment that is medically advisable; failure to do so may bar future recovery for a condition he could thereby have alleviated or avoided.'") (quoting Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 319 (5th Cir.1986)).
[Id. at 437-38 (footnote omitted).]
In Ostrowski, supra, in which we held that the plaintiff's
post-operative health habits could limit the damages recoverable
for defendant's allegedly negligent toenail surgery, Justice
O'Hern emphasized that even if the plaintiff did not follow her
physician's post-operative instructions, that conduct would not
extinguish defendant's liability but would instead diminish the
recoverable damages:
[I]t would be the bitterest irony if the rule
of comparative negligence, designed to
ameliorate the harshness of contributory
negligence, should serve to shut out any
recovery to one who would otherwise have
recovered under the law of contributory
negligence. Put the other way, absent a
comparative negligence act, it would have
never been thought that "avoidable
consequences" or "mitigation of damages"
attributable to post-accident conduct of any
claimant would have included a shutout of
apportionable damages proximately caused by
another's negligence. Negligent conduct is
not "immunized by the concept of 'avoidable
consequences.' This argument should more
properly be addressed to the question of
diminution of damages; it does not go to the
existence of a cause of action." Associated
Metals & Minerals Corp. v. Dixon Chem. &
Research, Inc.,
82 N.J. Super. 281, 306 (App.
Div. 1963), certif. denied,
42 N.J. 501
(1964); see also Flynn v. Stearns,
52 N.J.
Super. 115, 120-21 (App. Div. 1958) (“Where
the fault of the patient was subsequent to
the fault of the physician and merely
aggravated the injury inflicted by the
physician, it only affects 'the amount of the
damages recoverable by the patient.'"
(emphasis added) (citation omitted));
Restatement (Second) of Torts, § 918 at 500
and comment a (doctrine of avoidable
consequences "applies only to the diminution
of damages and not to the existence of a
cause of action").
[Ostrowski, supra,
111 N.J. 441-42.]
Depending on the proofs elicited at retrial concerning the
substance of warnings given to the Lynches after the 1984
stillbirth about the risks to be anticipated from future
pregnancies, the court may be required to instruct the jury
concerning the doctrine of avoidable consequences and its
application to the Lynches' decision to conceive Joseph.
We are fully in accord with both the Law Division's and the Appellate Division's determinations that New Jersey would recognize a medical malpractice cause of action based on preconception negligence that allegedly resulted in injury to a child conceived after the negligence occurred. We reject the contention advanced by some that the physician whose negligence gives rise to the claim owes no duty to a child not yet conceived. In the fields of obstetrics and gynecological surgery, the relationship between a physician's responsibilities and the possibility of consequences to the mother that affect future pregnancies is well understood. Moreover, our Court's conception of foreseeability as a determinant of duty is of sufficient breadth to accommodate the principle that in appropriate circumstances a physician's duty should extend to children conceived after the physician's negligence occurred:
The probability of injury by one to the legally protected interest of another is the basis for the law's creation of a duty to avoid such injury, and foresight of harm lies at the foundation of the duty to use care and therefore of negligence. The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances. Negligence is clearly relative in reference to the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care. In other words, damages for an injury resulting from a negligent act of the defendant may be recovered if a reasonably prudent and careful person should have anticipated, under the same or similar circumstances, that injury to the plaintiff or to those in a like situation would probably result.
[Hill v. Yaskin, 75 N.J. 139, 144 (1977) (quoting 57 Am. Jur 2d Negligence § 58 (1970) (footnotes omitted).]
We also do not share the concern expressed by the New York Court of Appeals in Albala, supra, 429 N.E. 2d at 788, that “[t]he perimeters of liability . . . cannot be judicially established in a reasonable and practical manner.” Our jurisprudence is sufficiently pragmatic to establish appropriate boundaries for a cause of action sounding in preconception negligence. In tort cases, "[l]iability depends not only on the breach of a standard of care but also on a proximate causal relationship between the breach of the duty of care and resultant losses." People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 264 (1985). We have defined proximate cause as “that combination of 'logic, common sense, justice, policy and precedent' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery.” Ibid. (quoting Caputzal, supra, 48 N.J. at 77-78) (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734 (Sup. Ct. 1923), aff'd o.b., 98 N.J.L. 893 (E. & A. 1923)). The contention that the recognition of potential liability for a preconception tort imposes on defendants an unlimited and unfair exposure to claims for damages attributable to subsequent pregnancies occurring long after the antecedent negligence is overstated. Our proximate cause jurisprudence is sufficiently flexible to bar claims for injuries that are unreasonably remote in relation to the defendant's negligence. Whatever the outer limits of the preconception tort cause of action may be, we have no sense that those limits are exceeded by the claims asserted on Joseph's behalf against Dr. Scheininger.
Based on this trial record, we also agree with the Appellate Division's conclusion that “Mr. and Mrs. Lynch's voluntary decision to conceive another child did not constitute a supervening cause of Joseph's disabilities [that] precludes him from pursuing a malpractice claim against Dr. Scheininger.” 314 N.J. Super. at 329. As the Appellate Division implied, and we agree, its decision on that issue might have been different if the undisputed evidence at trial demonstrated that the Lynches knew after the 1984 stillbirth that a high likelihood existe