The term preconception tort refers to negligent conduct which occurred prior to the plaintiffs conception. Every jurisdiction permits a child born alive to maintain a cause of action for prenatal injuries However, a perplexing problem that remains in this area is whether claims should be permitted where the harmful contact with the mother occurs even before the child is conceived. In Lough v. Rolla Women’s Clinic, the Missouri Supreme Court found such a claim to constitute a valid cause of action in Missouri.
The Birth of Preconception Torts in Missouri, Missouri Law Review, Volume 59, Issue 4, Article 6, Fall 1994.
This Note examines the legal development of preconception tort doctrine with particular focus on the foreseeability, statute of limitations, and policy issues flowing from the duty a defendant owes to an unborn plaintiff.
II. FACTS AND HOLDING
Lough v. Rolla Women’s Clinic
During her first pregnancy in 1984, Sandra Lough received prenatal care from Dr. Fortin and Dr. White at the Rolla Women’s Clinic in Rolla, Missouri. As part of that care, the clinic sent a blood sample to the Phelps County Regional Medical Center for analysis. Test results showed that Mrs. Lough’s Rh factor was negative, however, the lab technician misrecorded it as Rh positive.
Justin Lough was born later that year with Rh positive blood. During Justin’s delivery, Mrs. Lough’s immune system became sensitized to Rh positive blood and began to develop antibodies to attack future invasion. Because of the error in recording Mrs. Lough’s Rh factor, her doctors failed to administer RhoGAM, a drug designed to counter the adverse reaction to Justin’s Rh positive blood.
Mrs. Lough became pregnant with Tyler in 1986. Like Justin, Tyler’s blood was Rh positive. Throughout her pregnancy, the antibodies developed to fight Rh positive blood attacked Tyler’s system and he developed a condition known as erythroblastosis fetalis (“EBF”). The condition produced “devastating pulmonary, cardiovascular and neurological damage,” and “Tyler Lough was born with multiple, irreversible, profound disabilities.”
Tyler sued based on the negligent conduct of the lab technician in misrecording Mrs. Lough’s Rh factor. The trial court granted the defendants’ motion for summary judgment, finding no cognizable cause of action for preconception torts under Missouri law.
The Missouri Court of Appeals, Southern District reversed the decision, concluding that Missouri would recognize a cause of action for preconception torts. The Missouri Supreme Court granted transfer to consider this issue of first impression. After thoroughly reviewing the cases from other jurisdictions, the court addressed the fundamental issue of whether the defendant owes a duty to the plaintiff when the negligent conduct occurred prior to conception. The Missouri Supreme Court reversed the judgment of the trial court and remanded the case for further proceedings. The court held that preconception torts may be actionable in Missouri, a duty existed under the facts of this case, and the Missouri medical malpractice statute of limitations did not bar recovery.
III. LEGAL BACKGROUND
A. The Development of Preconception Tort Doctrine
For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and, therefore, wherever a new injury is done, a new method of remedy must be pursued. However, the common law recognized no duty to an unborn plaintiff and refused to allow recovery for prenatal injuries. Refusing to follow the doctrine set forth by Justice Holmes in Dietrich v. Inhabitants of Northampton, the court in Bonbrest v. KotzY began “a rather spectacular reversal of the no duty rule.” Today, all jurisdictions allow a later-born child to state a claim for prenatal injuries.
Relying on the early prenatal tort cases, the first cases to consider claims for preconception torts refused to recognize a cause of action. Then, in a 1973 products liability action, the Tenth Circuit rejected prior reasoning and allowed a cause of action for preconception injury to stand. Stating, “we are persuaded that the Oklahoma courts would treat the problem of the injuries alleged here as one of causation and proximate cause, to be determined by competent medical proof,” the court remanded the case to the district court for further proceedings.
The issue reached the Illinois Supreme Court in Renslow v. Mennonite Hospital, a case involving the negligent transfusion of Rh positive blood which sensitized the mother’s Rh negative blood and injured the later conceived plaintiff. The trial court dismissed the claim because the plaintiff was not “at the time of the alleged infliction of the injury conceived.” The Illinois Supreme Court recognized that the plaintiff was not a separate entity to whom the defendant owed a traditional duty of care at the time of the negligent conduct. However, the plaintiff asked the court to find a “contingent prospective duty to a child not yet conceived but foreseeably harmed by a breach of duty to the child’s mother.” Acknowledging that duty is essentially an expression of policy interests, the court concluded that “logic and sound policy require a finding of legal duty in this case.” There is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child’s mother. In light of substantial medical advances that can mitigate or prevent harm to an unborn child, “sound social policy requires the extension of duty in this case.” The court conceded that few prior cases reached the same result, but noted several courts and commentators had argued existence is not a prerequisite to finding a legal duty at the time of a wrongful act.
Finally, the court addressed the defendants’ concern that allowing a preconception tort cause of action would lead to perpetual liability across several generations. The defendants offered the example of a nuclear accident causing genetic damage to an ancestor and resulting in successive generations of plaintiffs suing a single defendant. The court distinguished the defendants’ hypothetical situation from the facts in Renslow, noting the damage was not self-perpetuating and the defendant was not a remote descendant of the person harmed by the negligent act. The court concluded, “we feel confident that when such a case is presented, the judiciary will effectively exercise its traditional role of drawing rational distinctions, consonant with current perceptions of justice, between harms which are compensable and those which are not.”
The acceptability of a preconception tort cause of action reached the Eighth Circuit in Bergstreser v. Mitchell, a diversity action requiring interpretation of Missouri law. The case arose when the defendants were alleged to have negligently performed a caesarean section during a prior pregnancy. As a result, the mother’s uterus ruptured during her later pregnancy with the plaintiff, and the plaintiff was injured during an emergency caesarean delivery. Similar to the defendants in Lough, the defendants argued Missouri would not recognize a cause of action for preconception torts and the claim was barred by the statute of limitations. The court found a cause of action for preconception torts consistent with Missouri prenatal tort doctrine and the few cases that had previously considered the issue. Furthermore, the Missouri two year statute of limitations and its tolling provision for minors began to run when the plaintiff came into being and not at the time of the negligent conduct. As the plaintiff filed his claim within the grace period associated with the tolling provision of the statute, his claim was not barred under Missouri law.
Eleven years after the decision in Renslow, a Michigan plaintiff brought an action alleging that the defendants’ failure to test and immunize her mother for rubella prior to pregnancy resulted in rubella related injury to the plaintiff. The court defined the issue as “whether or not a child, when born alive, has a cause of action for injury arising out of preconception negligent conduct,” in other words, “whether there was a duty under these circumstances to a plaintiff who was not in being at the time of a wrongful act.” The court concluded that “it is readily foreseeable that someone not immunized may catch rubella and, if pregnant, bear a child suffering from rubella syndrome.” Because the immunization and test were designed specifically to prevent rubella syndrome in later born children, the court found the defendant owed a duty of care to the plaintiff. Thus, a cause of action for preconception injury was found to exist.
The dissent voiced concern about potential liability that might extend across several generations to the original defendant. Furthermore, as discussed in Albala v. City of New York, recognizing a cause of action may make physicians practice defensive medicine, forcing them to choose whether to administer treatment to save a mother’s life, considering the treatment might one day harm a future born child. The dissent viewed this as extending “traditional tort concepts beyond reasonable bounds.” Therefore, the dissent concluded the defendants owed no duty to the plaintiff.
Following the logic of Albala, the Indiana Third District Court of Appeals declined to recognize a cause of action for preconception torts in Walker v. Rinck. Walker involved negligent typing of the mother’s blood and the failure to administer RhoGAM following the birth of an older child.
On facts which for legally relevant purposes were indistinguishable from Walker, the Indiana First District Court of Appeals in Yeager v. Bloomington Obstetrics and Gynecology, Inc. refused to follow the majority holding in Walker. Instead, the court adopted the view of the dissent in Walker, calling for the adoption of a cause of action for negligent preconception injuries. The court reversed the decision of the trial court and found the plaintiff’s complaint sufficient to state a cognizable claim.
In order to resolve the conflict between the circuits, the Indiana Supreme Court granted transfer of the Walker case. The court concluded the defendant owed a duty to the plaintiff because Mrs. Walker’s health would not be affected by receiving RhoGAM, a treatment designed to protect future fetuses from injuries in utero. Potential harm to future conceived children was readily foreseeable and no potential conflict existed between helping the mother with a treatment that might harm a later conceived child. An analysis of duty based upon relationship, foreseeability and public policy compels the conclusion that the defendant owed a duty to the plaintiff children to use reasonable care concerning the administration of RhoGAM to their mother.
The court concluded that the parents’ knowledge of the risks associated with having future children was not an intervening, superseding cause absolving the defendants of liability. To break the causal chain, an intervening, superseding cause must not be foreseeable at the time of the tortious act. It was foreseeable at the time of the defendant’s negligent failure to administer RhoGAM that the mother might become pregnant again in the future. Because this course of events was foreseeable at the time of the alleged negligent acts, it cannot be an intervening, superseding cause of the … children’s alleged injuries.
Finally, the court noted the plaintiff’s claim was not barred by the Indiana statute of limitations. While recognizing that the statute might allow a child to bring an action against a physician who failed to properly administer RhoGAM many years before, the court noted that it must follow the statute of limitations set forth by the legislature. The court pointed out that the legislature has the power to amend the statute of limitations to limit potential liability. However, the potential flood of litigation resulting from suits by second and third generation plaintiffs had not materialized in other jurisdictions.
While recognizing the existence of a cause of action for preconception torts, other courts have found the plaintiff s injury, on the facts of a particular case, to be too remote to recognize a duty of care.
For example, in McAuley v. Wills, the mother brought a wrongful death action for the death of her infant child. Prior to conception she suffered injuries in an automobile accident and became a paraplegic. Subsequently she married and gave birth to a child. Because of the mother’s paraplegia, the infant was unable to pass properly through the fetal course and died from cardiac arrest. Shortly afterwards, the mother sued the driver of the car for preconception negligence. The court held that “at least in some situations, a person should be under a duty of care toward an unconceived child.” However, the injuries resulting to the child were too remote to hold the driver responsible for the child’s death.
The mother in Hegyes v. Unjian Enter., Inc. was involved in an automobile accident with the defendant, and as a result, she was fitted with a medical device called a lumbo-peritoneal shunt. The mother later became pregnant, and the baby was delivered prematurely to avoid injury to the mother (not the infant) caused by the fetus pressing against the shunt. Like other California courts, the court failed to distinguish wrongful life claims from other types of preconception tort claims. Instead, all “claims brought by infants for negligence occurring prior to their conception” are treated as claims for wrongful life. California does recognize the existence of a cause of action for damages sustained as a result of a defendant’s preconception negligence. However, case law imposes liability only where there is a ‘special relationship’ between the defendant and the mother giving rise to a duty to the minor plaintiff. Liability is found where the defendant’s conduct is “inextricably related to the inevitable future pregnancy. . . .” The court found that no special relationship exists between a motorist and a child conceived several years after the mother’s involvement in an accident with that motorist. Deeply concerned about the ability to draw lines short of unlimited duty, the court found that a motorist owes no duty to the child and is not liable for injuries suffered by the child.
New York has steadfastly refused to recognize a cause of action for preconception injury. In Albala v. City of New York, the New York Court of Appeals declined to allow recoverybased on policy grounds, stating, we are of the opinion that the recognition of a cause of action under these circumstances would require the extension of traditional tort concepts beyond manageable bounds …. The court began by distinguishing preconception torts from prenatal torts, noting that with a prenatal tort there are two identifiable beings the mother and the fetus within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured. Next, the court distinguished the preconception tort claim from a claim for wrongful life.
Addressing the question of duty, the court expressed its concern about the limits of potential liability, noting that “foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability.”
Finally, the court suggested that recognition of the tort might lead to the practice of defensive medicine. Concluding that the law cannot provide a remedy for every harm, the court found that the balance of policy interests weighed in favor of rejecting the plaintiff’s preconception tort claim.
Catherwood v. American Sterilizer Co., another New York case, involved a mother exposed to chemicals while employed by the defendant. After the last exposure, the plaintiff was born with chromosomal damage. Following Albala, the court dismissed the negligence action and considered the applicability of the Albala holding to claims outside of negligence. The court noted that the Albala decision involved determinations based on public policy. The plaintiffs injuries were “foreseeable, causally related and resulted in ascertainable damages.” However, the decision was the exercise of the court’s duty to limit liability where policy so demanded. Based on this precedent, the court found recognizing a duty in a products liability action inconsistent with the policies of the New York Court of Appeals and declined to allow the plaintiff’s cause of action.
The New York Court of Appeals addressed the applicability of the Albala holding in a products liability context in Enright v. Eli Lilly and Co. The case involved the question of whether liability of diethylstilbestrol (“DES”) manufacturers should extend to third generation plaintiffs. Recognizing courts and the legislature have often expressed concern for DES cases and their unique problems of proof, the court declined to adopt a cause of action not available in other cases simply because this case involved DES. Enright differed from Albala only because the mother suffered injury from DES exposure instead of medical malpractice. While the manufacturer is in a better position to pay for the losses associated with defective products, the same issues present in Albala exist in a products liability case. Reasserting its position in Albala, the court noted that recognition of a cause of action could not be confined without the drawing of artificial and arbitrary boundaries. For all we know, the rippling effects of DES exposure may extend for generations. It is our duty to confine liability within manageable limits. Thus, the court concluded, “the distinctions between this case and Albala provide no basis for a departure from the rule that an injury to a mother which results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tortfeasor.”
B. Statute of Limitations
Prompted by a concern for stale claims after the decision in Renslow, the Illinois legislature modified the statute of limitations applying to preconception tort cases to provide that a claim must be filed within eight years of the negligent act. As in Lough, the statute of limitations argument is often raised in the context of preconception tort cases.
For example, in an EBF case where a physician failed to administer RhoGAM after a prior delivery, the Arizona Court of Appeals thoroughly reviewed the application of the statute of limitations in the context of a wrongful death action brought by the child’s mother. The court concluded the statute of limitations begins to run at the time of injury. However, in some cases the injury does not occur at the time of the medical malpractice. In a case involving administration of RhoGAM, if the mother decides not to have a any more later born children, then no injury ever occurs. Only when she becomes pregnant with a subsequent Rh positive child will injury actually occur. Thus, the court concluded that injury actually occurred at the moment of conception, and not the moment of birth of the later child. Since no injury could occur until the mother either conceived or gave birth to the second child, the action was filed within the three year statute of limitations period.
Like many states, Missouri revised its statute of limitations for medical malpractice actions as a response to the perceived medical malpractice crisis. The current statute provides that a claim against health care providers must be brought within two years of the date of the negligent act,13 except a minor under ten years old has until the twelfth birthday to bring the claim. However, in Strahler v. St. Luke’s Hospital, the Missouri Supreme Court found the exception requiring that an action be brought within two years of a minor’s tenth birthday violates a minor’s right to seek remedy in the courts under Article I, Section 14 of the Missouri Constitution.
Thus, a minor plaintiff has at least until the age of majority to file a claim under the expanded holding in Strahler.
IV. THE INSTANT DECISION
A. The Majority Opinion
After setting forth the procedural posture of the case, Judge Holstein cited cases from other jurisdictions addressing the preconception tort issue. Judge Holstein noted that “every court addressing the specific issue presented here has consistently allowed an action for recovery by a child born with EBF following a defendant’s failure to administer RhoGAM to an Rh negative woman who has given birth to an Rh positive child.” The court then reviewed the holdings of the New York cases refusing to recognize a preconception tort cause of action and referred to by Dean Prosser as a “blanket no-duty rule.” Judge Holstein concluded it was speculation to say that liability cannot be “confined to manageable boundaries if preconception torts are permitted.” Furthermore, the possibility that a physician may be forced to choose a course of treatment less beneficial to the mother to avoid harm to future children is not present in the facts of this case. Allowing recovery in an EBF case does not lead a physician to forego beneficial treatment to the mother.
Next, the court employed a hypothetical situation to illustrate the holding of the case.
The reason for not adopting a rule that would absolutely bar claims for preconception torts is demonstrated by the following hypothetical: Assume a balcony is negligently constructed. Two years later, a mother and her one-year-old child step onto the balcony and it gives way, causing serious injuries to both the mother and the child. It would be ludicrous to suggest that only the mother would have a cause of action against the builder but, because the infant was not conceived at the time of the negligent conduct, no duty of care existed toward the child. It is unjust and arbitrary to deny recovery to Tyler simply because he had not been conceived at the time of Kathy Jadwin’s negligence.
Judge Holstein then turned to the question of whether a duty existed in the case. He concluded that each of the factors outlined in Hyde v. City of Columbia favors a finding of duty in this case. The court stated:
Individual cases involving “preconception torts” can be sensibly analyzed under existing principles of tort law to determine if a duty exists in a particular case. Just as there is not a duty in every case when a plaintiff is alive at the time of some allegedly negligent conduct, there will not be a duty in every case where allegedly negligent conduct harms a plaintiff not yet conceived. It is sufficient to say that in this case, a duty exists.
Finally, the court focused on the medical malpractice statute of limitations. Judge Holstein found the holdings of Walker and Bergstreser highly persuasive on the question of whether Tyler Lough’s preconception tort claim should be barred. Under the terms of the statute, Tyler had until he turns twelve to bring his cause of action. Furthermore, the holding in Strahler expanded the two year limitation for minors. Given that Tyler was less than ten years old when the action was filed, his claim was not barred by the statute of limitations.
Having concluded that Missouri would recognize a preconception tort cause of action, that a duty existed in this case, and that the claim was not barred by the medical malpractice statute of limitations, the court reversed and remanded the case to the trial court for further proceedings.
B. The Dissenting Opinion
Special Judge Smith began the dissenting opinion by concurring with the majority’s recognition of a preconception tort cause of action on the facts of this case. However, the dissent diverted from the majority with regard to whether the statute of limitations barred the plaintiff’s claim.
Special Judge Smith first reviewed the history and development of the Missouri medical malpractice statute of limitations, noting specifically that “more than two years had elapsed between the date of occurrence of the act of neglect complained of’ and plaintiff’s conception.” While the majority concluded that the exception for minors should apply in this case, the dissent disagreed. The question not addressed by the majority is whether the minor exception applies where no injured minor exists until more than two years after the act of neglect.
Special Judge Smith then concluded that the exception for minors is a disability exception intended to provide minors with an opportunity to bring an action on their own behalf. Such a statute “must be viewed within the context of the legislative attempts to regulate the number and timeliness of malpractice actions.”
The dissent questioned the majority’s reliance on Walker and Bergstreser as persuasive authority, since both cases assumed that the exception for minors in the statute of limitations applies regardless of the amount of time passing between the negligent act and the plaintiff’s conception.16 That assumption is the fundamental difference between the majority and the dissent.
During the two year period after the occurrence plaintiff had not been conceived and therefore could sustain no damage, and no cause of action existed. He was not under any legal disability for disability connotes existence, which plaintiff did not have. He incurred no legal disability until after the time established in § 516.105 had passed. Prior to reaching a status of disability the time specified in the statute had expired and with it plaintiffs after arising cause of action.
The dissent concluded by noting the legislature had determined any injustice to the plaintiff “is outweighed by the benefits to the public health and weal from restriction of malpractice litigation.” The court must be bound by that determination.
Referring to Albala as a “thinly reasoned case” ruling that a child has no cause of action for preconception torts upon the mother, Prosser and Keeton argue for a less restrictive approach:
The reasons for denying such claims involve the problems of proof and proximate causation arising, for example, from the imposition of liability upon a chemical, drug or power company for future generations of genetically mutated children resulting from toxic chemicals or radioactive waste. These are indeed staggering problems, that will have to be dealt with carefully in future toxic tort contexts such as these, but they by no means require that a blanket no-duty rule be applied in preconception injury cases where such problems do not exist.
Others argue that preconception torts should be treated as any other negligence claim, subject to the traditional tort requirements of duty, breach, proximate cause, and damage without undue regard for the possibility of perpetual liability. The fact that the court in Lough could find no cases denying recovery to a plaintiff suffering from EBF indicates fundamental policy analysis must focus on where to draw the liability line in more speculative cases.
As indicated by the court in Lough, it is clear that existing principles of tort law may be used to determine whether a duty exists in a preconception tort case such as Lough. Little doubt exists as to the sound policy behind allowing a cause of action where the defendant negligently failed to provide a treatment designed specifically to benefit a later conceived child. Furthermore, traditional duty analysis provides a means of denying preconception claims that are too remote to be reasonably foreseeable at the time of the negligent conduct. Thus, when a future mother is injured in an automobile accident, public policy considerations prevent the defendant driver from being liable to a later conceived child.
While traditional duty analysis may be used to limit preconception tort claims involving pharmaceuticals and genetic defects appearing several generations beyond the negligent act, it becomes much more difficult to express sound policy reasons for drawing the line anywhere short of a “blanket no-duty rule.” Perhaps these problems are most apparent in the multigenerational cases involving preconception torts and DES. New York chose to avoid the problem of perpetual and unforeseeable claims by establishing a “blanket no-duty rule” that has been heavily criticized. Other courts (generally considering facts similar to those involving plaintiffs with EBF) have allowed a cause of action for preconception torts but have limited the holdings to allow for reconsideration in cases of perpetual liability. Thus, the facts of the specific case are an important factor overshadowing a court’s consideration of the underlying policy considerations required to find a legal duty and recognize a preconception tort cause of action. For example, in cases similar to EBF, where the doctor fails to administer treatment designed to protect the later born plaintiff, the facts support adoption of a cause of action. In other cases, the facts supporting recognition of a duty are much less compelling.
Nearly everyone would agree that the potential for staggering preconception tort liability in the context of toxic tort and pharmaceutical litigation calls for some limitation on perpetual liability. While some courts and commentators indicate traditional duty analysis is sufficient to limit long liability tails, others suggest these claims can best be curtailed by statutes of limitation,’ or other legislative action.
The majority in Lough appears comfortable with the use of duty analysis to limit remote preconception torts similar to any other tort cause of action. However, the dissent suggests that the Missouri statute of limitations should be interpreted to prohibit preconception claims, even in the context of an EBF case.
Thus, we are left to ponder the value of Lough as precedent for future preconception tort cases founded on less appealing fact patterns, such as a third generation DES granddaughter claim. Missouri courts have been less aggressive than even the New York courts in expanding recovery for DES plaintiffs.
While Lough provides persuasive authority for the proposition that a duty should extend to the third generation plaintiff, it is unlikely that the Missouri Supreme Court would reach such a result on the facts of a third generation DES granddaughter claim. Although the Missouri statute of limitations as interpreted by the majority in Lough, might not prevent perpetual claims, most certainly the Missouri Supreme Court would find that no duty exists based on the public policy factors set forth in Hyde and Lough. Such a result is consistent with both traditional tort principles and the policies expressed by the commentators.
Following persuasive authority regarding EBF cases, the Missouri Supreme Court reached the proper result in Lough, while constraining the holding to provide judicial limitations to Missouri preconception tort doctrine. Lough provides a sound doctrine for analyzing each case on its particular facts. Thus, the case offers precedent for protecting deserving plaintiffs such as Tyler Lough, while simultaneously protecting the medical community from remote perpetual liability claims that may arise.
Raymond E. Williams, 1994.
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