Physicians May Be Responsible for Injuries to Future, Unconceived Children
In a recent opinion, the Pennsylvania Superior Court held that physicians may be responsible for injuries to future children who were not even conceived at the time of the alleged negligence. The imposition of a duty of care to future, unborn children is an unprecedented extension of physician liability in the Commonwealth.
The case before the Superior Court was Matharu v. Muir and involved a patient who became pregnant in 1997 and was found to have Rh-negative blood while her husband was found to have Rh-positive blood. This incompatibility of blood types can complicate future pregnancies because the mother may develop antibodies against the Rh factor, treat the subsequent fetus as an intruder, and result in miscarriage. To prevent the development of the antibodies, the mother is given an injection of Rh immunoblogulin – RhoGAM – at 28 weeks gestation and within 72 hours after birth if the baby is determined to be Rh-positive. The plaintiff was given the RhoGAM in connection with her 1997 pregnancy.
The plaintiff later became pregnant again in 1998, was again found to be Rh-negative, but was not given RhoGAM by her obstetricians at either 28 weeks or 72 hours after delivery of the viable infant. The physicians are documented to have discussed the ramifications of the potential Rh sensitization, including the effects on future unborn fetuses.
Nonetheless, the plaintiff again became pregnant in 2005 and carried the fetus without complication until 26 weeks. At that point fetal blood work demonstrated anemia and the plaintiff underwent an intraperitoneal transfusion. During the procedure, the fetal heart rate became non-reassuring and an emergent C-section was performed. The child died two days later.
The plaintiff then sued the physicians who, in 1998, failed to administer RhoGAM and alleged that they caused the death of the child in 2005.
Generally, physicians do not owe a duty of care to, and therefore cannot be sued by, third-parties who are not their patients. Until this case, the only recognized exception was in cases involving communicable diseases, where a third-party who contracts a disease as a result of a physician’s negligence could sue the physician.
In Matharu, however, the Superior Court significantly broadened this previously narrow exception. The Court held that the physicians could be held liable for injuries to future children who were neither their patients nor even conceived at the time they provided care to their patients. The Court phrased it in part as follows:
[W]e are asked…to impose a duty upon Defendants to a readily foreseeable, third-party beneficiary of the physician-patient relationship.
The Court noted that the physicians knew that administering RhoGAM to the plaintiff could prevent her future, unborn children. It then rationalized its imposition of liability upon the physicians as follows:
[The] Child was in a class of persons whose health / life was likely to be threatened by Defendants’ failure to administer RhoGAM to Mother in 1998. Further, it was reasonably foreseeable that Defendants’ failure to administer RhoGAM to Mother in 1998 could injure her future unborn children. Finally, the purpose for administering RhoGAM is to protect the future unborn children of Mother and Father.
The Court also addressed the statute of limitations and held that the plaintiff’s claim was not time-barred. Ordinarily, negligence claims are subject to a two year statute of limitations, meaning the lawsuit must be filed within two years of the negligent act.
Here, however, the Court held that the plaintiff’s claim did not exist until the child passed away, regardless of when the negligent conduct occurred. The Court noted as follows with regard to its holding
[W]e recognize that the consequences of imposing a duty upon physicians under these circumstances could subject physicians to liability [for] years and possibly even decades.
The extension of responsibility imposed by this case is remarkable, both because it extends potential responsibility to non-patients including children who are not even conceived at the time of care and because it extends potential liability far into the future even after termination of the physician-patient relationship. It is unclear whether the defendants will seek a further appeal to the Pennsylvania Supreme Court but this is certainly a case that will generate much discussion and litigation in the future.