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Lynch v. Scheininger

August 07, 1998

GALE ANN LYNCH AND ROBERT LOUIS LYNCH, HER HUSBAND, AND JOSEPH LYNCH, AN INFANT, BY HIS GUARDIANS AD LITEM, GALE LYNCH AND ROBERT LOUIS LYNCH, INDIVIDUALLY AND PER QUOD, PLAINTIFFS-APPELLANTS,
v.
LAURENCE M. SCHEININGER, M.D., LAURENCE A. SEITZMAN, M.D., DRS. FINKEL, DRUCKER, SEITZMAN, P.A., AND DRUCKER, SEITZMAN & SCHEININGER, P.A., DEFENDANTS-RESPONDENTS, AND JERROLD S. FINKEL, M.D., THE ESTATE OF JERROLD S. FINKEL, M.D., PAUL DRUCKER, M.D., JOHN F. KENNEDY MEDICAL CENTER AND STEPHEN A. GROCHMAL, M.D., DEFENDANTS.



Before Judges Petrella, Skillman and Steinberg.

Argued February 9, 1998

[9]    On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

The opinion of the court was delivered by SKILLMAN, J.A.D.

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 plaintiff's 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 resulted from erythroblastosis fetalis, a condition caused by the incompatibility of maternal and fetal blood Rh factors. When the Rh negative blood of a mother is exposed to the Rh positive blood of her fetus, the mother's immune system recognizes the fetal blood as foreign material and produces antibodies to attack the fetal blood cells. This process is called Rh isoimmunization. Erythroblastosis fetalis occurs when the mother's blood mixes with the fetus' blood and the fetus attempts to compensate for the destruction of red blood cells caused by the mother's antibodies by overproducing blood cells. If the fetus is not delivered prematurely, this condition causes organ failure and may result in death.

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. *fn1

During the pendency of the prior action, Mrs. Lynch gave birth to plaintiff Joseph Lynch on January 11, 1987. Joseph was born 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. *fn2 Plaintiffs alleged that defendants did not diagnose and consequently did not treat Mrs. Lynch's Rh isoimmunization, which was a deviation from accepted standards of practice that not only caused the 1984 stillbirth but also contributed to Joseph's disabilities. Plaintiffs alleged that the failure to perform a fetal blood transfusion or to deliver the fetus at an earlier point in the course of Mrs. Lynch's 1984 pregnancy increased Mrs. Lynch's isoimmunization and consequently increased the risk of a bad outcome in future pregnancies. Mr. and Mrs. Lynch asserted a claim of "wrongful birth" on their own behalf and a claim of "wrongful life" on Joseph's behalf based on defendants' alleged failure to properly advise them of the risks of a future pregnancy. In addition, plaintiffs claimed that defendants' failure to properly manage Mrs. Lynch's 1984 pregnancy was a substantial contributing cause of Joseph's severe disability and the resultant medical and other expenses.

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, *fn3 as a result of which it dismissed Mr. and Mrs. Lynch's claims on the ground that they were barred by the statute of limitations. The court found that the Lynches knew or should have known that they may have had a basis for a claim against defendants at the time of Joseph's birth and consequently there was no basis for invocation of the discovery rule.

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. *fn4

At the Conclusion of a twenty-three day trial, the court reserved decision on defendants' motion to dismiss Joseph's remaining claims and submitted the case to the jury. The jury subsequently indicated that it was unable to reach a verdict, whereupon the court declared a mistrial and indicated that it would decide defendants' reserved motions to dismiss Joseph's remaining claims within a few days.

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." *fn5 However, the court concluded that Mr. and Mrs. Lynch's intentional conception of a child when they were aware Mrs. Lynch's Rh negative sensitization presented a serious risk to any future baby she might deliver constituted a supervening cause of Joseph's disabilities which precluded the imposition of liability upon defendants. The court stated that "[t]o hold the defendants liable ..., where the parents intentionally assumed the risk, would be ... contrary to [the] principle ... that in the face of a defendant's negligence a person should not be able to increase the consequences of that negligence by an intentional act." In addition, the court concluded that Joseph's claim against Dr. Seitzman should be dismissed because the record did not contain any evidence from which a reasonable trier of fact could find that he had committed malpractice.

Plaintiffs appeal from the dismissal of their claims. We reverse the part of the judgment dismissing Joseph's claims for his disabilities and consequent medical and other expenses against Dr. ...


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