The opinion of the court was delivered by: Stein, J.
Argued September 13, 1999
On certification to the Superior Court, Appellate Division, whose opinion is reported at 314 N.J. Super. 318 (1998).
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. *fn1 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.
Although the issue is one of first impression in this Court, both lower courts - the Law Division expressly and the Appellate Division by implication - assumed that New Jersey courts would recognize an infant's cause of action for medical malpractice arising out of negligent conduct occurring prior to the infant's conception that proximately caused injury to the infant. In Taylor v. Cutler, 157 N.J. 525 (1999), we affirmed the Appellate Division's judgment dismissing a child's suit for damages allegedly caused by an automobile accident between defendant and the child's mother approximately seven years prior to the child's birth. In Taylor, we expressly declined to express any view concerning preconception torts in a medical malpractice context. Id. at 525.
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; ...