Graham v. Keuchel, 72586

CourtSupreme Court of Oklahoma
Citation847 P.2d 342,1993 OK 6
PartiesJames Randolph GRAHAM, II and Katrina Dawn Graham, natural father and mother, guardians and next friends of Donald Keaton Graham, a deceased minor, Appellants and Counter-Appellees, v. Joseph A. KEUCHEL, D.O.; W. Richard Loerke, D.O.; Benien Clinic, Inc., an Oklahoma corporation, Donald G. Dunaway, D.O.; Osteopathic Hospital Founders Association, an Oklahoma corporation, d/b/a Oklahoma Osteopathic Hospital, Appellees and Counter-Appellants, and Drs. Dean, Hall & Ryker, William E. Hall, M.D., and David E. Ryker, M.D., Defendants.
Docket NumberNo. 72586,72586
Decision Date26 January 1993

On Appeal from the District Court, Tulsa County; Daniel J. Boudreau, Judge.

In a medical malpractice action an Rh-negative mother sued for bodily injury and her husband joined with a separate claim for their child's wrongful death. They urged doctors and a hospital had negligently failed to type the mother's blood and administer the hyperimmune globulin Rho-GAM during an earlier miscarriage. The appeal is from judgment on a jury verdict for the defendants upon both claims. Doctors and hospital counter-appeal.


Jerry M. Melone, Matt A. Melone, Melone-Shepherd-Schroeder-Allred-Melone, Tulsa, for appellants and counter-appellees, James Randolph and Katrina Dawn Graham.

James K. Secrest, II, Edward J. Main, Secrest & Hill, Tulsa, for appellees and counter-appellants, Joseph A. Keuchel, D.O., W. Richard Loerke, D.O., and Benien Clinic, Inc.

Joseph M. Best, Joseph A. Sharp, John H.T. Sheridan, Best, Sharp, Sheridan & Stritzke, Tulsa, for appellee and counter-appellant, Donald G. Dunaway, D.O.

Pete Silva, Jr., Michael Barkley, John D. Clayman, Teresa G. Dreiling, Barkley, Rodolf, Silva, McCarthy & Rodolf, Tulsa, for appellee and counter-appellant, Osteopathic Hosp. Founders Ass'n, an Oklahoma corp., d/b/a Oklahoma Osteopathic Hosp.

OPALA, Chief Justice.

Two issues are dispositive of this appeal: Was the supervening cause instruction in the wrongful death claim 1 fatally or reversibly flawed? Did the trial court commit reversible error by instructing on "mistake of judgment" 2 when this jury charge was unwarranted by the evidence adduced in the trial of both claims? We answer both questions in the affirmative, reverse the judgment and remand the cause for a new trial not inconsistent with this opinion. 3

Two more issues are presented by counter-appeal: Did the trial court err by failing to direct a verdict for defendants on the wrongful death claim? Should the trial court have held that the mother's bodily injury claim was time barred? We answer both questions in the negative.


The plaintiff Katrina Graham [the mother] brought suit for her own bodily injury and was joined by her husband, as next friend [the parents], in a claim for their child's [Donald's] wrongful death. 4 Both causes were based upon negligent medical treatment the mother had received in connection with a pregnancy and miscarriage in 1981-1982. 5 The mother contended that the defendants [doctors] 6 did not determine her blood type nor give her the anti-sensitization drug Rho-GAM, 7 which (a) caused her to become sensitized, 8 (b) seriously impaired her ability to bear healthy children and (c) placed her in great danger. 9 The parents argued that the doctors' negligent sensitization of the mother was the direct cause of Donald's fatal condition and his death.

Donald was born on December 19, 1983 with a hemolytic disease called erythroblastosis fetalis [EBF]; he died four days later. A child who is RH-positive may be born with EBF if its RH-negative mother has, during an earlier pregnancy, miscarriage or childbirth, become sensitized 10 to the D antigen which is present in RH-positive blood. 11 A sensitized RH-negative woman's blood contains antibodies which, during a later pregnancy, 12 may cross the placenta Sensitization can usually be prevented 14 by giving an RH-negative mother the drug Rho-GAM 15 during all pregnancies 16 and after every miscarriage, abortion or birth of an RH-positive fetus or child. 17 Failure to give Rho-GAM to an RH-negative mother of an RH-positive fetus or child at the proper time increases the risk of the immune response and its consequences for later pregnancies--i.e., the possibility of severe fetal harm or death.

into the RH-positive fetus to attack and destroy its red blood cells. This may cause anemia in the fetus or in the unborn child. The anemia may range from a mild case, which can be remedied by blood transfusion at birth, to severe anemia (EBF) which is often lethal to the baby--as it was in the case before us now. 13

The parties stipulated the mother has Rh-negative blood and is presently sensitized to the Rh factor. The doctors denied any negligence in the mother's treatment and contended that (1) the statute of limitations had run on her claim 18 and (2) her sensitization was not caused by the 1982 miscarriage. 19 They also urged that, if they were negligent, the mother was contributorily negligent for failing to tell them she (a) is Rh-negative and (b) had received Rho-GAM before. 20

The doctors also disclaimed responsibility for Donald's death. They urged that a superseding cause cut off their liability to the parents because the mother had (1) willfully conceived Donald (2) with full knowledge that she had been sensitized and (3) with complete appreciation of the serious risk of harm to herself and to the child.

This appeal was lodged from a judgment on a jury verdict in favor of the doctors on both claims. The doctors counter-appeal.








One of the essential elements of actionable negligence requires that the act or omission complained of be the direct cause of the harm for which liability is sought to be imposed. 21 Not every intervening cause insulates the original negligent actor from liability. 22 When a cause combines with another act or omission to produce the injury 23 or several causes operate to bring about the same result, 24 each negligent actor may be liable for the harm that evolves. To rise to the magnitude of a supervening cause, which will insulate the original actor from liability, the new cause must be (1) independent of the original act, (2) adequate of itself to bring about the result and (3) one whose occurrence was not reasonably foreseeable to the original actor. 25

The doctors urged below that the jury might infer from the evidence that the mother (1) knew that she had been sensitized, (2) had been warned and understood completely the medical statistics indicating the degree of danger to both mother and child when a sensitized mother has a baby and (3) willfully engaged in sexual conduct intended to bring about conception with the full resolve of carrying the fetus to term. In short, they urged that she intentionally exposed Donald to the risk and danger which ultimately resulted in his death. According to the doctors, a "willful pregnancy" under those conditions would be a supervening cause that cuts off their liability. Over the parent's objection the trial court submitted to the jury a supervening cause instruction. 26

The parents argue that the evidence at trial did not warrant a supervening cause instruction; they point to Strong v. Allen, 27 where a father's lax supervision of his child--there considered to have been ordinary negligence--failed the three-prong test 28 for isolating supervening cause. According to the parents, the mother's negligence in becoming pregnant--just as the father's ordinary negligence in Strong--cannot legally support a supervening cause instruction.

Two firmly settled rules of law coverage to prevent a parent's negligent act from operating as a cause that would supervene an original actor's substandard behavior. 29 Firstly, a parent's ordinary negligence may not be imputed to a child of tender years to bar or reduce the child's recovery against a third party. 30 Secondly, except for the very narrowly carved exception which permits filial recovery for insured losses from vehicular negligence, 31 a child cannot recover from a parent for the latter's ordinary negligence, which causes or contributes to the child's injury or death. 32 These principles combine here to prevent the doctors from directly or obliquely shifting to the mother, in whole or in part, their own tort liability for harm to the child. No parent's act or omission is hence available as a supervening cause if it is rested on ordinary negligence. 33 Because the law's barrier does not reach into willful acts, 34 the doctors may not be deprived of that legal defense against the death claim which lies beyond the perimeters of the mother's ordinary negligence. 35


A person is not generally deemed liable at common law for a third party's deliberate act. 36 A third person's intentional tort is a supervening cause of the harm that results--even if the actor's negligent conduct created a situation that presented the opportunity for the tort to be committed--unless the actor realizes or should realize the likelihood that the third person might commit the tortious act. 37 A negligent actor is not bound to anticipate another's wrongful act after the latter has discovered the danger that arises from the former's negligence. 38 Lapse of time or other reason--such as, e.g., the third person's discovery of the original actor's negligence or the former's deliberate assumption of control of the situation--may cause the duty to prevent harm to another, threatened by the original actor's negligent conduct, to shift from that actor to the third person. When this happens the...

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