Malpractice & Negligence: Parents' Voluntary Conception of Child Will Not Absolve a Physician of...

Malpractice & Negligence: Parents' Voluntary Conception of Child Will Not Absolve a Physician of Liability for Pre-Conception Negligence-Lynch v. Scheininger1-The Supreme Court of New Jersey held that parents' voluntary decision to conceive a child does not constitute a superseding cause that

In 1984, Plaintiff Gale Ann Lynch's pregnancy resulted in a stillbirth attributed to erythroblastosis fetalis, a condition caused by incompatible maternal and fetal lth factors. Her obstetrician, Defendant Laurence M. Scheininger, admittedly did not diagnose and treat the problem, and acknowledges that his failure to treat Lynch was a factor resulting in the stillbirth. Lynch had a miscarriage in 1985, and in the following year sued Scheininger and others for malpractice to recover damages relating to the stillbirth. On January 11, 1987, while the suit was pending, Lynch gave birth to a son, Joseph. The child was born with significant and permanent neurological disabilities caused by erythroblastosis fetalis. Lynch filed a second action against Scheininger and asserted claims of (1) wrongful birth on their own behalf, (2) wrongful life on Joseph's behalf, and (3) a claim on Joseph's behalf that the prior malpractice was a substantial contributing cause of Joseph's severe physical and mental impairments, a "preconception tort."4

Lynch settled her claims relating to the 1984 stillbirth, but the claims relating to Joseph's birth were expressly excluded from the settlement agreement. After a Lopez5 hearing, the Law Division dismissed the Plaintiff's wrongful birth claim as untimely because the Lynches knew, or should have known, of their potential claim when Joseph was born. The court also dismissed the wrongful life claim at the close of Plaintiffs' case, finding that the evidence did not show reliance on Defendant's advice in deciding to conceive another child. The New Jersey Supreme Court affirmed the lower court's dismissal of both of these claims.6

As for Lynch's third claim, the court recognized that physician liability for a preconception tort presented an issue of first impression. The court held that New Jersey would recognize a malpractice cause of action based on preconception negligence. "In the fields of obstetrics and gynecological surgery, the relationship between a physician's responsibilities and possibility of consequences to the mother that affect future pregnancies is well understood."7 The court's understanding of "foreseeability as a determinant of duty" extended the physician's duty to children conceived after the negligent act.8 Appropriate boundaries could be established for a cause of action based on preconception negligence, and the court emphasized that pragmatic jurisprudence would prevent claims for injuries that were unreasonably remote from a physician's negligence.9

The court stated that two issues would determine resolution of the appeal. First, whether the parents' voluntary act of conception, despite their knowledge of an increased risk of harm to a child, constituted a superseding cause. Second, whether the communication of an adequate warning of increased risk limits the negligent physician's liability. Regarding the first issue, the court noted that the issue of superseding cause is a "question of policy and fairness."10 The court stated that their case law reflected a pragmatic application of the doctrine that focused on "the specific facts and circumstances" of the issue "irrespective of whether the intervening event involved negligent or intentional conduct by others."11 Since superseding causation is extremely fact sensitive, it is normally an issue reserved for jury determination.

Upon examination of the record, the New Jersey Supreme Court found no "undisputed evidence at trial" demonstrating that the Plaintiffs knew after the stillbirth that there was a high risk of death or abnormalities in subsequent pregnancies.12 Thus, it was inappropriate for the lower court to hold as a matter of law that the Lynches' decision to conceive was a superseding cause of Joseph's injuries. However, the court held that if, on retrial, Scheininger could demonstrate that the Lynches knew of a high likelihood of harm, "such a finding would supersede [sic] defendant's liability for his antecedent negligence."13

Next, the court turned to the related doctrine of avoidable consequences. The doctrine limits a plaintiff's recovery where items of damages "could reasonably have been averted."14 The court stated that depending upon the evidence presented at retrial concerning warnings made by Defendant about the risks in future pregnancies, the court may be required to instruct the jury to apply the doctrine in this case.

The court concluded by evaluating the issue of apportionment of responsibility. The court stated that if evidence was presented that would allow the "jury to find that the risks of another pregnancy were significant enough that the Lynches' decision to conceive Joseph, although clearly a foreseeable consequence" of Defendant's negligence, was "a deliberate election not to avoid the known but unquantified risk of future injury," then the jury "may be instructed to consider that evidence" when apportioning fault.15 While the court would not characterize the plaintifFs decision to conceive as fault-based because of its subjective nature, describing the decision "as a percentage of fault" would reduce damages and would aid juries in apportioning liability.

The New Jersey Supreme Court's recognition of a preconception tort places a heavy burden on obstetric physicians to communicate to patients the potential implications of a doctor's negligent acts. While the extent to which a doctor must foresee danger will unfold in future case law, it is clear that a doctor must warn patients of potential hazards created by the doctor's acts in order to avoid future liability.

Ryan Engle