Physician Liability Extended to Preconception Torts
Two days after his birth, Milan Matharu passed away. His parents attribute his death to a negligent omission made by his mother’s physician seven years before his conception. A full panel of the Superior Court of Pennsylvania ruled unanimously last week that Milan’s estate and parents may proceed with a lawsuit against the mother’s physician in Matharu v. Muir, --- A.3d ---, 2014 WL 688191 (Pa. Super. Feb. 21, 2014). Notably, the Court held that the physician owed a duty to Milan despite the fact that he was not yet conceived when the alleged tort occurred. Id. at *8-9. In so doing, the Superior Court vastly expanded the scope of physician liability to a third party.
Prior to Matharu, the courts of Pennsylvania held a health care professional accountable to third parties in two limited circumstances. First, a therapist has a duty to warn his patient’s intended victim when the therapist is aware of a “specific and immediate threat of serious injury . . . [against] a specifically identified or readily identifiable victim.” Emerich v. Philadelphia Center for Human Development, Inc., 720 A.2d 1032, 1940 (Pa. 1998). Second, a stranger to the patient-physician relationship may seek damages from a physician who negligently advises the patient about a communicable disease, which the patient then spreads to the third party. DiMarco v. Lynch Homes–Chester County, Inc., 583 A.2d 422, 423 (Pa. 1990) (holding that boyfriend of patient with Hepatitis B could sue girlfriend’s physician for incorrect advice regarding transmission); Troxel v. A.I. Dupont Institute, 675 A.2d 314 (Pa. Super. 1996), appeal denied, 685 A.2d 547 (Pa. 1996) (finding duty to a third-party non-patient when a physician did not advise his patient about the dangers of spreading Cyto-Megalovirus (CMV) to unborn children of others).
In this case, neither of these narrow exceptions applied. That is, the physician neither failed to warn of an imminent threat nor failed to advise about the transmission of a communicable disease. Rather, Milan’s mother lacked an Rh factor in her blood, an inherited antigen found on the surface of red blood cells. Those lacking the antigen are designated as Rh-negative. During pregnancy, the blood from the fetus can migrate into the mother’s bloodstream. If the mother is Rh-negative and the fetus is Rh-positive, the mother’s body will create antibodies to fight the foreign blood cells. Once an Rh-negative mother has produced these antibodies, they remain in her system and problems may occur in later pregnancies. The Rh antibodies can cross the placenta and attack the fetus's red blood cells; a potentially fatal condition.
In order to prevent this serious condition, the Rh-negative mother is usually provided an injection of Rh immunoglobulin (RhoGAM) first at the 28th week of gestation and then within 72 hours after birth if the baby’s blood is Rh-positive. After the birth of her second child, Milan’s mother alleges that her physician did not properly administer RhoGAM, and that this omission led to the presence of antibodies in her blood which ultimately caused the death of Milan, her sixth child.
The physician who failed to administer the RhoGAM injection provided no care or treatment to Milan or his mother while she carried Milan. Even so, the trial court held that the physician still owed a duty to the mother’s future children conceived after this omission. On appeal, the Superior Court affirmed, finding that the administration of RhoGAM was meant to “protect future unborn children” and not provide any physical health benefit to the mother. Consequently, Milan was within the “foreseeable orbit of the risk of harm” and the lawsuit should proceed.
The Supreme Court of Pennsylvania agreed to hear the case but ultimately remanded the case back to the Superior Court to consider its holding in Seebold v. Prison Health Serv., 57 A.3d 1232 (Pa. 2012). In Seebold, the plaintiff was a corrections officer responsible for conducting strip searches of female inmates, who contended that the prison’s medical staff knew or should have known that some inmates had been infected with methicillin-resistant staphylococcus aureus, commonly known as MRSA. According to the plaintiff, the medical staff had a duty to inform correction officers of the infection so they could take reasonable precautions to protect themselves from infection.
The Supreme Court, however, held that no such duty existed: “[T]here is a patent, material difference between providing advice to a patient within the contours of a confidential physician-patient relationship and disclosing protected medical information to third-party non-patients.” Id. at 1243. While DiMarco and Troxel permitted third-party non-patients to bring suit against physicians, each suit was predicated on the alleged failure of the defendant-physician to provide proper advice to the patient. In other words, neither the holding in DiMarco nor Troxel require the physicians “to . . . interven[e] outside the confidential physician-patient relationship.” Id. As noted above, the only time a physician has a duty to intervene with a non-patient is when there is a “targeted threat of imminent violence.” Matharu, 2014 WL 688191, at * 7 (citing Emrich, 720 A.2d at 1940).
Even though the yet-to-be-conceived Milan was not a patient of his mother’s physician when the omission occurred, the Superior Court found Seebold distinguishable and reaffirmed its position that the physician still owed a duty to Milan. The Court held that the negligent omission that occurred here, like in DiMarco and Troxel, occurred within the confines of the physician’s relationship with his patient. The fact that the ultimate plaintiff was not the patient of the defendant-physician was of no moment because, as DiMarco and Troxel demonstrated, the advice/treatment was not for the patient’s benefit but rather “to safeguard the health of others.” Id. at *8 (quoting DiMarco, 583 A.2d at 424 (emphasis in original)).
Not all jurisdictions have chosen to expand liability to such a remote plaintiff. For instance, in a similar case in New York, the Court refused to extend the duty of the physician to a later-conceived child. Albala v. City of New York, 429 N.E.2d 786 (N.Y. 1981). Although the New York Court of Appeals agreed with the parents that it was foreseeable that the mother would conceive another child and that the health of the child could be negatively impaired, foreseeability was not the sole consideration. Id. at 788. The Court found no duty and held that to recognize such an extension of duty to third parties would “require the extension of traditional tort concepts beyond manageable bounds. . . .” Id. at 787.
If Matharu signals a willingness of Pennsylvania courts to expand potential liability, the number of potential scenarios is endless. For example, consider a female passenger in a car accident who perforates her uterus due to the negligence of the driver. The perforation causes the passenger’s baby, born twenty years later, to suffer from deformities. Does the driver owe a duty to that baby conceived decades after the accident? It remains to be seen whether the holding in Matharu demonstrates a willingness to vitiate the limits on liability to strangers to the patient-physician relationship or whether Matharu is one of the limited exceptions to the general rule restricting liability.