Monusko v. Postle

• Court: Court of Appeal of Michigan
• Writing for the Court: SHEPHERD; DODGE; MacKENZIE
• Citation: Monusko v. Postle, 175 Mich.App. 269, 437 N.W.2d 367 (Mich. App. 1989)
• Decision Date: 10 April 1989
• Docket Number: Docket Nos. 95314,95355
• Parties: Jill Rose MONUSKO and Marty D. Monusko, Co-Conservators of the Estate of Andrea Monusko, a Protected Person, Plaintiffs-Third-Party Defendants-Appellees, v. Jack R. POSTLE, M.D., James S. Keith, M.D., Richard A. Kutcipal, M.D., Douglas G. Kinne, M.D., and Burns Clinic Medical Center, P.C., a Michigan Corporation, Defendants-Third-Party Plaintiffs-Appellants, and Daniel J. Verburg, M.D., Defendant-Appellant, and Northern Michigan Hospitals, Inc., a Michigan Non-Profit Corporation, Defendant. Jill Rose MONUSKO and Marty D. Monusko, Co-Conservators of the Estate of Andrea Monusko, a Protected Person, Plaintiffs-Third-Party Defendants-Appellees, v. Jack R. POSTLE, M.D., James S. Keith, M.D., Richard A. Kutcipal, M.D., Douglas G. Kinne, M.D., and Burns Clinic Medical Center, P.C., a Michigan Corporation, Defendants-Third-Party Plaintiffs, and Daniel J. Verburg, M.D., Defendant, and Northern Michigan Hospitals, Inc., a Michigan Non-Profit Corporation, Defendant-Appellant.

Page 367

437 N.W.2d 367

175 Mich.App. 269

Jill Rose MONUSKO and Marty D. Monusko, Co-Conservators of

the Estate of Andrea Monusko, a Protected Person, Plaintiffs-Third-Party Defendants-Appellees, v. Jack R. POSTLE, M.D., James S. Keith, M.D., Richard A.

Kutcipal, M.D., Douglas G. Kinne, M.D., and Burns Clinic

Medical Center, P.C., a Michigan Corporation,

Defendants-Third-Party Plaintiffs-Appellants,

and

Daniel J. Verburg, M.D., Defendant-Appellant,

and

Northern Michigan Hospitals, Inc., a Michigan Non-Profit

Corporation, Defendant.

Jill Rose MONUSKO and Marty D. Monusko, Co-Conservators of

the Estate of Andrea Monusko, a Protected Person, Plaintiffs-Third-Party Defendants-Appellees, v. Jack R. POSTLE, M.D., James S. Keith, M.D., Richard A.

Kutcipal, M.D., Douglas G. Kinne, M.D., and Burns

Clinic Medical Center, P.C., a Michigan

Corporation,

Defendants-Third-Party Plaintiffs,

and

Daniel J. Verburg, M.D., Defendant,

and

Northern Michigan Hospitals, Inc., a Michigan Non-Profit

Corporation, Defendant-Appellant.

Docket Nos. 95314, 95355.

Court of Appeals of Michigan.

Submitted May 4, 1988.

Decided Feb. 23, 1989.

Released for Publication April 10, 1989.

Levine, Benjamin, Tushman, Bratt, Jerris & Stein, P.C. by Alvin L. Levine and Bruce L. Jerris, Bloomfield Hills, for plaintiffs-third-party defendants-appellees.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for Postle, Keith, Kutcipal, Verburg, Kinne, and Burns Clinic Medical Center, P.C.

Menmuir, Zimmerman, Rollert & Kuhn by R. Jay Hardin, Traverse City, for Northern Michigan Hospitals, Inc.

Before MacKENZIE, P.J., and SHEPHERD and DODGE, ^* JJ.

SHEPHERD, Judge.

These consolidated appeals come to us on denial of the defendants' motion for summary disposition as to Count I of plaintiffs' complaint. Count I seeks damages for plaintiff Andrea Monusko for a preconception tort. The issue is one of first impression in this jurisdiction. We affirm the decision of the trial court and conclude that such a cause of action exists on the facts of this case.

Andrea Monusko was born on February 10, 1980, in a severely impaired physical and mental condition, suffering from rubella syndrome. A complaint was filed on her behalf in 1985. The complaint sets forth three theories for recovery. We are here concerned with Count I, alleging what might best be termed a preconception tort. In passing, we note that a 1982 suit resulted in a settlement of the parents' claim for all past, present, and future medical and custodial expenses throughout Andrea's lifetime. The instant suit seeks recovery for plaintiff Andrea Monusko's pain and suffering, mental anguish, and emotional trauma.

Jill Rose Monusko (Monusko) began prenatal care and treatment at Burns Clinic on November 22, 1977, prior to the birth of her second child, Loretta Monusko. The individual defendant doctors provide OB/GYN treatment at Burns Clinic. Monusko received prenatal care through February of 1978. She was not tested for her rubella status at any of her visits.

On March 2, 1978, she was admitted to Northern Michigan Hospital, where Loretta was delivered by at least one of the Burns Clinic defendants. Monusko was neither tested nor immunized during her stay in the hospital. She was neither tested nor immunized during her Burns Clinic visit. On March 22, 1979, Monusko returned to the Burns Clinic to have her IUD removed. She indicated to the attending doctor that she wished to have a third child. She was neither tested nor immunized for rubella at that visit.

Monusko subsequently became pregnant with Andrea, suffered from rubella, and Andrea suffered the resulting difficulties. Rubella (a form of measles) is a disease which, if contracted by a pregnant woman, can result in damage to her child.

Plaintiffs put forward the recommendation made by the American College of Obstetricians and Gynecologists which states that a rubella test should be given to the pregnant patient if her status is unknown. They further rely on the ACOG standard which states that the first postpartum examination is "an optimal time for review of family planning and for determining immunizations, including rubella." In essence, the complaint alleges a negligent failure to render appropriate prenatal care to Monusko preceding the birth of her second child, Loretta, including failure to conduct appropriate lab examinations, including a rubella test, and failure to render appropriate postpartum intraconceptional and gynecological care to Monusko following the birth of her second child, including failing to perform tests to determine Monusko's rubella immunity status and in failing to immunize her against rubella, all in contravention of the ACOG standards.

The hearing on the motion for summary disposition was held on June 19, 1986. The thrust of defendants' argument was that they owed no duty to a plaintiff not yet conceived. Defendants' motion was denied and they now appeal.

In reviewing a grant of summary disposition under MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, this Court is obligated to accept as true all well-pled facts and to determine whether the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Abel v. Eli Lilly & Co., 418 Mich. 311, 323-324, 343 N.W.2d 164 (1984), cert den sub nom E.R. Squibb & Sons v. Abel, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984). A motion for summary disposition under MCR 2.116(C)(8) tests the genuineness of the claim by challenging the legal adequacy of the pleadings. Id.

The trial court, in its written opinion, stated the issue succinctly: "In general terms, the issue is whether or not a child, when born alive, has a cause of action for injury arising out of preconception negligent conduct." The issue has otherwise been stated: "Whether there was a duty under these circumstances to a plaintiff who was not in being at the time of a wrongful act." Renslow v. Mennonite Hospital, 67 Ill.2d 348, 367, 10 Ill.Dec. 484, 503, 367 N.E.2d 1250, 1269 (1977) (Dooley, J., concurring).

In the instant case we are confronted with the issue of duty. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person." Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977). The question of duty depends in part on "forseeability--whether it is forseeable that the actor's conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable." 400 Mich. at 439, 254 N.W.2d 759.

Other jurisdictions have concluded that a doctor or hospital can have a duty to a not-yet-conceived plaintiff. In Renslow v. Mennonite Hospital, supra, the plaintiff's mother was given a negligently administered blood transfusion some eight years prior to the plaintiff's birth. The plaintiff was born with brain and physical injuries caused by the transfusion of RH positive blood into the RH negative mother eight years prior. The Illinois Supreme Court concluded:

"The cases allowing relief to an infant for injuries incurred in its previable state make it clear that a defendant may be held liable to a person whose existence was not apparent at the time of his act. We therefore find it illogical to bar relief for an act done prior to conception where the defendant would be liable for this same conduct had the child, unbeknownst to him, been conceived prior to his act. We believe that there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child's mother.

"The extension of duty in such a case is further supported by sound policy considerations. Medical science has developed various techniques which can mitigate or, in some cases, totally alleviate a child's prenatal harm. In light of these substantial medical advances it seems to us that sound social policy requires the extension of duty in this case." Renslow, 67 Ill.2d at 357-358, 10 Ill.Dec. at 493-494, 367 N.E.2d at 1259-1260.

In Bergstreser v. Mitchell, 577 F.2d 22 (CA 8, 1978), the court held that under Missouri law a child stated a cause of action against two doctors in a hospital for injuries allegedly sustained as the result of a negligently performed Caesarean section upon the child's mother several years prior to the child's birth. See also Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (CA 10, 1973) (product liability case vacating district court dismissal and reinstating suit on behalf of children allegedly injured as the result of mother's birth control pill usage).

Defendants rely heavily on a New York case prohibiting recovery for an alleged preconception tort. In that case the plaintiff was born with brain damage allegedly the result of a perforated uterus the plaintiff's mother received during an abortion several years prior to the plaintiff's birth. Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786 (1981). The court rejected the plaintiff's claim, principally on the basis of policy. Concluding that "foreseeability alone is not the hallmark of legal duty," the court ruled that it would require an extension of traditional tort concepts beyond manageable bounds to allow the plaintiff to go forward.

We cannot agree with that reasoning in the instant case. Here, plaintiffs have alleged that the failure of defendants to test Jill Rose Monusko for her rubella status and to immunize her against rubella prior to conception resulted in Andrea's injuries. The tests and immunization, relatively simple and straight-forward to administer, are designed specifically to alleviate the sort of injuries we have in this case. It is readily foreseeable that someone not immunized may catch rubella and, if pregnant, bear a child suffering...