Howard v. Mitchell

In 1971 obstetricians Kermit Mitchell and Joseph Flippen (collectively, the doctors) (defendants) determined Betsy Howard (plaintiff) had been pregnant and suffered a spontaneous abortion. Howard’s blood was typed as Rh negative—lacking the Rh factor. In 1972 Howard became pregnant again and delivered a baby who was typed as Rh negative. In 1974 Howard became pregnant again. This time Howard tested positive for an antibody to the Rh factor, and the pregnancy spontaneously aborted. In 1981 Howard gave birth to a baby who died from erythroblastosis fetalis because of Howard’s Rh-factor antibodies. Howard sued the doctors for the wrongful death of this child. In 1984, after Howard filed her lawsuit, her child born in 1972 was correctly typed as Rh positive. The doctors only treated Howard during her 1971 pregnancy. Howard’s medical expert, Dr. Marvin Krane, testified that the accepted medical practice was to treat with RhoGAM after a spontaneous abortion to prevent development of Rh-factor antibodies. Krane testified that there was a 3 to 5 percent chance that Howard could have developed the Rh-factor antibodies following the spontaneous abortion in 1971, and that there was at least a 20 percent chance that Howard developed the antibodies following her 1972 full-term pregnancy. Krane also testified that there were no tests to determine when Howard developed the Rh-factor antibodies, and that it was more likely to have occurred during the 1972 full-term pregnancy. Krane further testified that treating Howard with RhoGAM would have virtually eliminated any development of Rh-factor antibodies, but that it was conjecture that Howard developed the antibodies due to not treating with RhoGAM. Krane testified that the cause was a coin flip, but that there was a better chance to have developed Rh-factor antibodies after a full-term pregnancy than after a pregnancy ending in a spontaneous abortion. Krane could not say which pregnancy caused the development of Rh-factor antibodies. The trial court granted the doctors’ motion for summary judgment. Howard appealed.