Walker v. Rinck

• Decision Date: 02 December 1992
• Docket Number: No. 64S03-9212-CV-952,64S03-9212-CV-952
• Citation: 604 N.E.2d 591
• Parties: Kenneth WALKER and Judith Walker, Individually, and Kathy Walker, Jennifer Walker, and Nathan Walker, Minors By Next Friend Kenneth Walker, Appellants, (Plaintiffs Below) v. Larrie G. RINCK, D.O., and Lake Ridge Laboratory, Inc., Appellees. (Defendants Below)
• Court: Indiana Supreme Court

Page 591

604 N.E.2d 591

Kenneth WALKER and Judith Walker, Individually, and Kathy Walker, Jennifer Walker, and Nathan Walker, Minors By Next Friend Kenneth Walker Appellants, (Plaintiffs Below) v. Larrie G. RINCK, D.O., and Lake Ridge Laboratory, Inc. Appellees. (Defendants Below)

No. 64S03-9212-CV-952.

Supreme Court of Indiana.

Dec. 2, 1992.

Dawn E. Wellman, Brand & Allen, Greenfield, for appellants Kenneth Walker et al.

Daniel A. Gioia, Robert D. Brown, Spangler Jennings & Daugherty, P.C., Merrillville, Larry G. Evans, Heide B. Jark, Hoeppner, Wagner & Evans Valparaiso, for appellee Larrie Rinck, D.O.

Richard A. Hanning, David C. Jensen, Eichhorn, Eichhorn & Link, Hammond, for appellee Lake Ridge Laboratory, Inc.

ON PETITION TO TRANSFER

KRAHULIK, Justice.

The issue presented in this case is whether a child has a viable cause of action for injuries allegedly resulting from the negligence of a physician and a medical laboratory prior to the conception of the child. We answer that, under the facts of this case, the child may maintain such a cause of action.

Kathy, Jennifer and Nathan Walker (all minors) (the "Walker children") filed suit against Larrie G. Rinck, D.O., and Lake Ridge Laboratory, Inc., ("Lake Ridge") for injuries allegedly sustained as the result of Lake Ridge's negligent interpretation of tests to determine their mother's blood type and Dr. Rinck's negligent failure to give their mother RhoGAM following the birth of their older sibling. The trial court granted summary judgment in favor of Dr. Rinck and Lake Ridge which the Court of Appeals affirmed. Walker v. Rinck (1991), Ind.App., 566 N.E.2d 1088 (Hoffman, P.J., with Garrard, J., concurring and Staton, J., dissenting).

The facts relevant to this case are that, in October 1975, Dr. Rinck informed Mrs. Walker that she was pregnant and Mrs. Walker, who was a nurse, informed Dr. Rinck that she had Rh negative blood. ¹ Dr. Rinck ordered blood tests from Lake Ridge. Those tests erroneously reported that Mrs. Walker had Rh positive blood. Consequently, at the time of the birth of her first child in June 1976, no RhoGAM injections were given to Mrs. Walker. In fact, Mrs. Walker had Rh negative blood and the child had Rh positive blood and, thus, Mrs. Walker was exposed to the formation of potentially harmful antibodies. In 1979, Mrs. Walker again became pregnant but had a miscarriage. At this time no RhoGAM was given to her because she had already formed the antibodies following the birth of her first child; once formed, the administration of RhoGAM does nothing to remove the antibodies. In 1980, she became pregnant again and, in May 1981, gave birth to Nathan, who had Rh positive blood. Nathan alleged that he suffered anemia and respiratory problems as a result of the defendants' negligence in improperly interpreting his mother's blood type and in failing to administer RhoGAM following the birth of his older sibling. In 1984, Mrs. Walker became pregnant and, in February 1985, delivered Kathy and Jennifer. Kathy has Rh positive blood and alleges that the defendants' negligence caused her to have hearing impairments, motor skill deficiencies and possible mental retardation. Jennifer has Rh negative blood and alleges that the defendants' negligence has caused her to suffer asthma. All three children filed their suits against defendants in December 1985, alleging that the defendants' negligence between October 1975 and the date of birth of their older sibling in June 1976 caused them to have the injuries set forth above. Summary judgment motions filed by the defendants were granted by the trial court, and were affirmed by the Court of Appeals on the basis that (1) Indiana does not recognize a pre-conception tort, and (2) the conduct of the parents in conceiving these children was an intervening, superceding cause of the children's health problems. 566 N.E.2d at 1089-90.

After the Court of Appeals issued its opinion in this case, a different panel of the Court of Appeals, faced with an almost identical case, reached a contrary result. Yeager v. Bloomington Obstetrics (1992), Ind.App., 585 N.E.2d 696 (Robertson, Barteau, and Sharpnack, JJ.). Much of the Yeager opinion is premised on a case decided by us subsequent to the Court of Appeals' opinion in Walker, viz. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992. We grant transfer to resolve the conflict.

I. STANDARD OF REVIEW

This case was concluded in the trial court by summary judgment. Summary judgment is appropriate only if the pleadings and evidence sanctioned by Indiana Trial Rule 56(C) show that "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." T.R. 56(C). Once the movant shows entitlement to summary judgment, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." T.R. 56(E). In reviewing the propriety of summary judgment on appeal, we note that summary judgments, like all trial court judgments, are clothed with the presumption of validity. Department of Rev. v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1313. The reviewing court faces the same issues that were before the trial court and follows the same process. Id. The party appealing from the grant of summary judgment has the burden of persuading the appellate tribunal that the grant of summary judgment was erroneous. Id. The trial court's determination is "carefully scrutinized to assure that the non-prevailing party is not improperly prevented from having his day in court." Id.

II. PRE-CONCEPTION TORT

Both defendants argue that the Court of Appeals correctly decided that a "pre-conception tort" should not be recognized in Indiana. Thus, they assert, because the Walker children have not pled a cause of action for which Indiana allows a recovery, the defendants are entitled to summary judgment.

Specifically, Lake Ridge argues that the legislature has, at least in part, addressed the proposition of pre-conception tort and has rejected it by enacting Ind.Code Sec. 34-1-1-11 which provides that "[n]o person shall maintain a cause of action ... based on the claim that but for the negligent conduct of another he would have been aborted." Lake Ridge's analysis is flawed because of confusion over the definition of the terms "wrongful life" and "pre-conception tort".

In Cowe v. Forum Group, Inc. (1991), Ind., 575 N.E.2d 630, 635, we held that "[d]amages for wrongful life are not cognizable under Indiana law." In discussing the concept of a claim for "wrongful life" as distinguished from "wrongful conception or pregnancy" or "wrongful birth", we said:

A brief summary of the prevailing nomenclature may be helpful. An action for "wrongful conception or pregnancy" refers to a claim for damages sustained by the parents of an unexpected child alleging that the conception of the child resulted from negligent sterilization procedures or a defective contraceptive product. This action is recognized in Indiana. The phrase "wrongful birth" applies to claims brought by the parents of a child born with birth defects alleging that due to negligent medical advice or testing they were precluded from an informed decision about whether to conceive a potentially handicapped child or in the event of a pregnancy, to terminate it. When such action seeks damages on behalf of the child rather than the parents, the phrase "wrongful life" instead of "wrongful birth" is employed.

Id. at 633 (citations omitted). In a footnote, we further distinguished the terms wrongful birth and wrongful life by holding that such phrases "do not apply to cases which allege a defendant's tortious conduct as the cause of abnormalities in infants that would otherwise have been born normal and healthy." Id. at 634, n. 2. The latter factual circumstance constitutes a cause of action for a "pre-conception tort" and encompasses the claims of the Walker children. From this discussion, it is easy to ascertain that Ind.Code Sec. 34-1-1-11 applies to "wrongful life" cases. Thus, Lake Ridge's reliance on Ind.Code Sec. 34-1-1-11 as a legislative preclusion of an action based upon a pre-conception tort is misplaced.

Lake Ridge's primary argument, however, is that because recognition of pre-conception torts works a "dramatic innovation" on the tort law of this State, the decision of whether to recognize a claim for pre-conception tort is a matter better left to the legislature. We reject this argument for two reasons. First, it is the traditional role of the highest court of a state to determine the common law of that state even if such determination results in an innovative growth of the common law. See e.g., Brooks v. Robinson (1972), 259 Ind. 16, 23, 284 N.E.2d 794, 797 ("The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.") Second, we do not envision that the recognition of a pre-conception tort is the new, dramatic innovation of tort law described by Lake Ridge. The dramatic innovation identified by Lake Ridge is the ability of a person not yet conceived at the time of the negligent act to sue the negligent actor. In fact, such has been the case in Indiana for some time. See, e.g., Second Nat'l. Bank v. Sears Roebuck & Co. (1979), 181 Ind.App. 1, 390 N.E.2d 229 (alleged negligent installation of furnace). No one would seriously contend that an infant could not recover for injuries sustained as a result of a defective product, such as an automobile, manufactured prior to the conception of the infant. In those situations, as here, the wrongful conduct occurred prior to the conception of the infant plaintiff. For both of these reasons, we reject the argument that we should refrain from answering the question presented by this case in order to allow the legislature to provide the answer.

Dr. Rinck, in his brief, correctly recognizes that "duty" is the threshold question to be determined when...