Yonce v. Smithkline Beecham Clinical Laboratories, Inc.

EYLER, Judge. The premature births, and untimely deaths, of monozygotic (identical) twins born to appellants Deborah and Dennis Yonce gave rise to the litigation presently before us. Suit was brought by appellants as personal representatives of the deceased infants' estates, as parents for the wrongful deaths of their two minor children, by Deborah Yonce individually, and by appellants jointly for loss of consortium. They filed suit on September 22, 1993 in the Circuit Court for Baltimore City against SmithKline Beecham Corporation and two of its subsidiaries, appellees (“SmithKline”), 1 and, on or about the same date, filed an action in the Health Claims Arbitration Office against Roger C. Sanders, M.D., et al., appellee (“Sanders”). 2 On November 2, 1993, SmithKline removed the case to the United States District Court for the District of Maryland.

Thereafter, following a waiver of arbitration, appellants petitioned the United States District Court for leave to amend their complaint to add Sanders as a defendant. The claims against Sanders were based on negligence, and the claims against SmithKline were based on negligence and breach of contract. In an order dated August 9, 1994, the United States District Court granted the petition, thereby destroying diver ¹²⁸ sity of citizenship and, accordingly, remanded the matter to the circuit court. SmithKline filed a motion for summary judgment with respect to all counts pertaining to it.

The motion and memorandum in support thereof asserted lack of proximate cause and assumption of the risk as defenses to the tort counts; with respect to the contract counts, it asserted that Deborah Yonce was not a third-party beneficiary of a contract between Sanders and SmithKline and the alleged damages were not legally recoverable in a contract action. The circuit court heard argument on all of these issues in December of 1994. On January 24, 1995, the circuit court issued a memorandum opinion in which it concluded that SmithKline was entitled to summary judgment. Although the circuit court granted summary judgment in favor of SmithKline with respect to all counts (negligence and contract), in its opinion the circuit court referred only to the negligence claims and to the defense of proximate cause. 3 On February 13, 1995, appellants filed a motion requesting the circuit court to enter a final judgment pursuant to Maryland Rule 2-602. 4 The circuit court denied the motion on March 17, 1995.

Appellants then filed a motion for reconsideration, in which they reiterated, among other things, that none of the defendants opposed appellants’ motion for entry of a final judgment. The circuit court, nevertheless, denied that motion on April 24, 1995. Subsequently, Sanders moved for summary judgment on the ground of lack of proximate cause, based on the circuit court’s judgment en ¹²⁹ tered on behalf of SmithKline. In August of that year, the circuit court granted Sanders’ motion for summary judgment.

Unsatisfied with the events that transpired below, appellants noted an appeal from the entry of summary judgment in favor of SmithKline and Sanders, and pose three question to us: 5 I. Can the admittedly negligent destruction of a medical sample be a proximate cause of damages sustained as a result of a subsequent medical procedure required to obtain a replacement sample?

II

Where a defendant negligently destroys a medical sample, does the patient ‘voluntarily’ encounter the risks associated with a subsequent medical procedure required to obtain a replacement sample, for purposes of the doctrine of assumption of the risk?

III

Where a defendant negligently destroys a medical sample, is the patient’s ‘understanding and appreciation’ of the risks associated with the second procedure properly a genuine issue of material fact to be resolved by a jury? Sometime in May of 1990, appellant Deborah Yonce learned that she was pregnant. 6 On June 29, 1990, Ms. Yonce went to the offices of Doctors Glowacki, Elberfeld & Spangler, P.A., Inc. (“Clinic”), for prenatal care and met with Shirley Secrest, a certified nurse midwife. In her deposition, Ms. Yonce testified that she could not recall the content of her conversation with Secrest. Secrest stated, in an affidavit, that she counseled Ms. Yonce regarding amniocentesis 7 and chorionic ¹³⁰ villus sampling (“CVS”) 8 and, although she could not recall the actual conversation, she followed her normal routine and detailed the risks attendant to an advanced maternal age delivery (thirty-five years or over). 9 On July 9, 1990, Ms. ¹³¹ Yonce returned to the Clinic and met with Dr. Spangler.

According to Ms. Yonce, Dr. Spangler discussed with her the potential hazards associated with her pregnancy (e.g., chromosomal abnormalities), explained to her the various testing options and attendant risks, including amniocentesis and CVS, and gave her assorted medical literature pertaining to the subjects under discussion. 10 ¹³² Approximately one month later, Ms. Yonce telephoned the Clinic and informed the office staff that she wished to have an amniocentesis performed. Ms. Yonce, who understood that the procedure was indicated, but elective, had discussed the matter with her husband and weighed the risks involved. She testified in her deposition as follows: Q What was the nature of discussion that you had with your husband concerning amniocentesis? A Which test to have, the amniocentesis or the CVS?

The CVS didn’t seem to be as safe. The percentages and the possible outcome seemed not as, it didn’t seem as safe to have the CVS as what it did the amniocentesis, so we decided on the amniocentesis. ¹³³ Ms. Yonce’s amniocentesis was delayed from the scheduled date of September 5 because a sonogram conducted on that day revealed that she was carrying twins and the sonographers could not determine whether the twins were enveloped within one amniotic sac or separate sacs. Three more failed attempts at visualizing sac separation led Dr. Elberfeld, of the Clinic, to refer Ms. Yonce to Dr. Sanders and his Institute. Ms. Yonce met with Dr. Sanders at the Institute on September 26, 1990, where they discussed, as he noted in his deposition, the reasons for conducting an amniocentesis and the risks associated with the procedure.

Q What did you tell her about the benefits and the risks? A I told her this was a procedure that carried with it a risk of ending the pregnancy somewhere between one and two hundred or one in three hundred. I told her there were several complications associated with the performance of an amniocentesis, which in total added up to that risk. Complications that I mentioned were induction of premature labor and hemorrhage, loss of fluid and infection.

In her deposition, Ms. Yonce declared that Dr. Sanders did not discuss with her the risks and benefits of the amniocentesis. Instead, she was told to sign a consent form “where it sa[id] patient,” and she did so. Knowing that she earned twins, Ms. Yonce explained why she decided to undergo the first amniocentesis. Q What made you decide to go ahead with the amniocentesis?

A I thought that it was the best thing. I thought that it would help to know about my babies, which I knew there was two at the time, and because of my age, if there were problems, the results that would come out of the tests might, you know, help my doctors and us. They told us that they could let us know the sex. They pretty much knew the sex of the babies from the sonogram, but they would not guarantee it.

I was apparently too ¹³⁴ early. I just thought that it was something that I should do. Q But you realized that you had the option not to have it done? A Yes.

Q Did you decide with your husband what you would have done had you found out that there was a chromosomal abnormality? A We never discussed that. We never discussed what, you know, what the tests would have shown and what we would have done. Q You were just going to cross that bridge when you came to it, if you came to it?

A Yes. Q Was finding out the sex one of the important factors in making this decision? A It was one of them. The amniocentesis procedure was uneventful and produced a specimen from each sac.

An Institute employee packaged the specimen and contacted SmithKline’s laboratory for pickup. Unfortunately, the specimens were rendered useless when the transporter placed them on dry ice and froze them. 11 Dr. Sanders telephoned Ms. Yonce, informed her that the specimens were useless and scheduled another amniocentesis. According to Dr. Sanders, prior to the second amniocentesis, he informed Ms. Yonce “that the risks and benefits [of the second amniocentesis] were essentially the same as they had been on the previous occasion.” Ms. Yonce contacted Dr. Elberfeld, who told her that “the risk of having it [an amniocentesis] the second time would be approximately the same as having it the first time.... [S]o she would be taking the risk twice.” On October 2, 1990, Ms. Yonce submitted to a second ¹³⁵ amniocentesis performed by Dr. Sanders. 12 After the second amniocentesis, Ms. Yonce felt “fine, relieved.” The next day, however, she became ill and, pursuant to Dr. Elberfeld’s instructions, reported to the hospital. At the hospital, Dr. Elberfeld examined Ms. Yonce, reviewed her test results, and diagnosed her condition as chorioamnionitis. 13 Because chorioamnionitis “was basically a death sentence for the pregnancy,” Dr. Elberfeld ordered another amniocentesis.

The results of that test confirmed that one amniotic sac was infected with staphylococcus. Dr. Elberfeld then had no choice but to induce labor, even though the fetuses were not viable. Ms. Yonce gave birth to identical twins who lived for forty-two minutes and one hour and twenty-two minutes, respectively. The pathologist, Dr. Sandra L. Buchart, released her surgical pathology report on September 8, 1990, in which she stated, among other things, her final diagnosis: “Choriamnionitis [sic], presumed secondary to amniocentesis, Staphylococcal.” For purposes of appellees’ motion for summary judgment, the following statements in this paragraph were not in dispute below and are not in dispute on appeal.

SmithKline was negligent in its handling of the sample. 14 Dr. Sanders was not negligent in performing the second amniocentesis. The pregnancy would have been uneventful in the absence of the infection, and the infection was attributable to the second amniocentesis. The risk of fetal death as a result of an amniocentesis is between .33% and .5%. Both procedures were elective; the first amniocentesis did not create a condition that made the second amniocentesis mandatory. ¹³⁶ Before we delve into the issues presented, we note that our task is to determine whether the circuit court’s grant of appellees’ motion for summary judgment was legally correct.

Dixon v. Able Equip. Co., Inc., 107 Md.App. 541, 543-44 , 668 A.2d 1009 (1995). The circuit court, in turn, was empowered to enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.... Md. Rule 2-501(e) (1996).

I. Proximate Causation A. General Principles The circuit court perceived that the question before it was “whether liability lies when a negligent act is followed by a second, non-negligent act, and the non-negligent act is the proximate cause of the injury.” As stated, the question contained the answer. The question stated neutrally is whether there is legally sufficient evidence to permit a factfinder to conclude that the negligent act was a proximate cause of the harm. In order for a plaintiff to prove a cause of action in negligence, the plaintiff must establish the following: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty. Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76 , 642 A.2d 180 (1994). 15 The subject matter of the present dispute, proximate cause, the fourth element of the negligence calculus, is a ¹³⁷ concept that possesses a chameleon-like ability to defy precise categorization, and must be analyzed on a case-by-case basis.

As noted by Prosser and Keeton: There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach. Much of this confusion is due to the fact that no one problem is involved, but a number of different problems, which are not distinguished clearly, and that language appropriate to a discussion of one is carried over to cast a shadow upon the others. Prosser and Keeton on the Law of Torts § 41, at 26 (5th ed. 1984) (“Prosser & Keeton”).

Writing for the Court of Appeals, Judge Digges declared that [pjroximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation. Peterson v. Underwood, 258 Md. 9, 16 , 264 A.2d 851 (1970). Authors of treatises and texts have pointed out that courts sometimes confuse and sometimes discuss interchangeably the question of whether a duty exists in the first instance with the question of proximate cause.

A negligent act, to be actionable, requires a duty to protect an injured party from risk of harm from the hazard in question, i.e., an unreasonable risk. A specific fact situation can be analyzed in terms of a duty or, if a duty is assumed or held to exist, in terms of proximate cause. In this case, as did the parties, we assume the existence of a duty. Two subparts comprise the element of proximate cause. [T]he element of proximate cause is satisfied if the negligence is 1) a cause in fact of the injury and 2) a legally cognizable cause. ¹³⁸ Baltimore Gas & Elec.

Co. v. Lane, 338 Md. 34, 51 , 656 A.2d 307 (1995). Our courts have used two tests when determining whether a defendant’s negligence is the cause in fact of a plaintiffs injury. Respectively, they are described as the “but for” and “substantial factor” tests. See Peterson, 258 Md. at 16 , 264 A.2d 851 ; Bartholomee v. Casey, 103 Md.App. 34, 56-57 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995).

By its nature, the “but for” test applies when the injury would not have occurred in the absence of the defendant’s negligent act. Peterson, 258 Md. at 16 , 264 A.2d 851 . The “but for” test does not resolve situations in which two independent causes concur to bring about an injury, and either cause, standing alone, would have wrought the identical harm. The “substantial factor” test was created to meet this need but has been used frequently in other situations.

Prosser & Keeton § 41 at 266, quoted in Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208 , 604 A.2d 445 (1992). The “substantial factor” test is firmly rooted in the Restatement (Second) of Torts (“Restatement”) approach to proximate cause. § 431. What Constitutes Legal Cause The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. § 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another: (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; ¹³⁹ (b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time.

See Bartholomee, 103 Md.App. at 56 , 651 A.2d 908 (compiling Maryland cases utilizing the “substantial factor” test). Regardless of the test employed, the focus remains on the fundamental and sometimes metaphysical inquiry into the nexus between the defendant’s negligent act and the resultant harm to the plaintiff. See Peterson, 258 Md. at 16-17 , 264 A.2d 851 . If there is no causation in fact, we need go no further for our inquiry has reached a terminal point.

If, on the other hand, there is causation in fact, our inquiry continues. Mackin v. Harris, 342 Md. 1, 8 , 672 A.2d 1110 (1996). If causation in fact exists, a defendant will not be relieved from liability for an injury if, at the time of the defendant’s negligent act, the defendant should have foreseen the “general field of danger,” not necessarily the specific kind of harm to which the injured party would be subjected as a result of the defendant’s negligence. Stone v. Chicago Title Ins.

Co., 330 Md. 329, 337 , 624 A.2d 496 (1993). This is in accord with the Restatement (Second). § 435. Foreseeability of Harm or Manner of Its Occurrence (1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. (2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. ¹⁴⁰ Quoted in Hartford Ins.

Co. v. Manor Inn, 335 Md. 135 , 157 n. 6, 642 A.2d 219 . (1994). The notion of foreseeability is also invoked in a determination of proximate cause when two or more non-simultaneous causes are at play. The chain of causation may be broken by an intervening force (negligent or non-negligent) that may, in turn, become a superseding cause, in which case the original tortfeasor’s liability will terminate.

When more than one act of negligence arguably could be responsible for the injury, the question that is presented is whether the second in point of time superseded the first, i.e., did that act intervene and supersede the original act of negligence, thus terminating its role in the causation chain? Hartford, 335 Md. at 157 , 642 A.2d 219 . An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence. The connection between a defendant’s negligence and the plaintiffs injury may be broken by an intervening cause.

But in order to excuse the defendant, this intervening cause must be either a superseding or a responsible cause. It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. It is a responsible one, if it is the culpable act of a human being, who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause.

But the connection is not actually broken, if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation. State ex rel. Schiller v. Hecht Co., 165 Md. 415, 421 , 169 A. 311 (1933). ¹⁴¹ Normally, the “foreseeability inquiry is ... a question of fact to be decided by the trier of fact.” Lane, 338 Md. at 52 , 656 A.2d 307 . It is only when the facts are undisputed, and are susceptible of but one inference, that the question is one of law for the court....

Lashley v. Dawson, 162 Md. 549, 563 , 160 A. 738 (1932). B. Application of Principles to this case 1. Causation in fact The parties, not surprisingly, take opposite sides on this issue. Appellees state that “[fjreezing the fluid caused the sample to be unusable for testing; it did not infect Ms. Yonce or terminate the pregnancy.” ' Appellees ignore, however, the nexus between the frozen specimens and the twins’ death.

Appellees rely on Peterson, supra, for their argument that there is no legally sufficient evidence of causation in fact. The reliance is misplaced. In Peterson , there was evidence that the manner of construction of a wall was in violation of an ordinance. Peterson, 258 Md. at 14 , 264 A.2d 851 .

The wall fell and caused damage; there was no evidence as to what caused the wall to fall and thus no evidence that the violation of the ordinance in fact caused the fall. In this case, it is undisputed that the second amniocentesis would not have occurred but for the negligent act; a jury could find Ms. Yonce contracted the infection as a result of the second procedure; that the infection required Dr. Elberfeld to induce labor; and that inducement of labor led to the premature birth and subsequent death of the infants. Furthermore, the negligent act was a substantial factor in producing harm. The freezing of the specimens created a situation harmless until acted upon by other forces (ie., the decision to undergo a second procedure and chorioamnionitis) for which the negligent actor was not responsible.

See Restatement (Second) § 433(b). Consequently, because a jury could find causation in fact, we must discuss whether the negligent act was a legally ¹⁴² cognizable cause. That analysis, in turn, requires a discussion of foreseeability with reference to nature and extent of harm and with reference to intervening forces and superseding causes. 2. Legally Cognizable Cause Appellees argue that “a new chain of causation was initiated by the independent factors of Ms. Yonce’s decision to be retested and the development of the extremely rare infection” and that neither was foreseeable.

The argument is intriguing, but, ultimately, is without merit. Often proximate cause is not proven because the negligent act was too far removed from the harm, the nature or extent of the harm was unforeseen, or the injured party was not a member of the class to whom injury was foreseeable. First, the temporal and spatial chain between the freezing of the specimens and the twins’ untimely deaths was not so attenuated as to relieve appellees of liability. See Peterson, 258 Md. at 18-20 , 264 A.2d 851 .

On September 26, 1990, Dr. Sanders performed the first amniocentesis upon Ms. Yonce. She discussed the situation with Drs. Elberfeld and Sanders; Dr. Sanders performed the second procedure on October 2, 1990; within two days of that procedure Ms. Yonce reported to the hospital and, subsequently, gave birth to the infants. Second, the nature and extent of harm was foreseeable, i e., the “general field of danger” that the freezing of the specimens created was foreseeable and, therefore, by definition not highly extraordinary.

As quoted in footnote 11, supra, Smith-Kline’s technical information sheet pertaining to chromosome analysis of amniotic fluid declared, in capital letters, that amniotic fluid specimens should not be placed on cold packs, frozen, or refrigerated. Third, the identity of the injured party was foreseeable. SmithKline should have been aware that destruction of the specimens might have resulted in a decision by the provider of the specimens, Ms. Yonce, to submit for a retest and to face the risks and complications associated with it. ¹⁴³ In Hartford , a case heavily relied upon by appellees, Judge Bell, writing for the Court of Appeals, examined the importance of foreseeability in determining the existence of proximate cause, both in terms of foreseeability of harm and foreseeability of intervening causes. In that case, an escapee from the Springfield Hospital Center, Robert Lee Griffin, stole an unattended Manor Inn laundry van that an employee had left unlocked with the keys in the ignition.

Hartford, 335 Md. at 139 , 642 A.2d 219 . During the span of thirty minutes, Griffin was involved in a hit-and-run collision, and a collision with a car which gave rise to the damage claim. Id. at 140 , 642 A.2d 219 . Having determined that Manor Inn’s employee was negligent, Judge Bell next analyzed whether Griffin’s negligence broke the chain of causation flowing from Manor Inn’s negligence.

Id. at 157, 642 A.2d 219 . Judge Bell concluded that the causal connection was broken because “the manner in which he [Griffin] drove the van, and its consequences [injury to the insured], were ‘highly extraordinary.’ ” Id. at 160, 642 A.2d 219 . Comment (e) to Restatement (Second) § 435 16 states: It is impossible to state any definite rules by which it can be determined that a particular result of the actor’s negligent conduct is or is not so highly extraordinary as to prevent the conduct from being a legal cause of that result. This is a matter for the judgment of the court formulated after the event, and therefore, with the knowledge of the effect that was produced.

Restatement (Second) at 453-54. Appellees latch upon the term “highly extraordinary” and suggest that the “contraction of an exceedingly rare infection was ‘highly extraordinary’ in the same sense that the Court considered the thief s manner of driving to be ‘highly extraordinary.’ ” The argument has its foundation in Dr. Spangler’s statement that the incidence of chorioamnionitis in all pregnancies is “extremely rare” and “far less than one percent.” ¹⁴⁴ We need not resort to statistical data to perform our proximate cause analysis, because the question is one of foreseeability. Specifically, the question is whether appellees should have foreseen the general harm, namely, the twins’ deaths from complications arising from a second amniocentesis, and not the specific manifestation of that harm (ie., premature birth at a non-viable age induced by chorioamnionitis). See Stone, 330 Md. at 337 , 624 A.2d 496 .

In this instance, we cannot say as a matter of law that the potential complications of an amniocentesis procedure were highly extraordinary events and, therefore, unforeseeable. Before leaving our discussion of foreseeability in this context and moving to intervening forces and superseding causes, we acknowledge appellees’ argument that foreseeability is used to expand liability in the determination of a duty to warn and is used to limit liability in the determination of proximate cause. Consequently, they argue proximate cause is not established simply because a risk is foreseeable in a duty to warn context. 17 Applying that argument to this case, and recognizing that the concepts of duty to warn and informed consent are analogous, appellees conclude that, although a small risk of infection from an amniocentesis may be material and may be required to be disclosed for informed consent purposes, that fact does not make the infection foreseeable for proximate cause purposes. Appellees further conclude that duty to warn cases, e.g., Moran v. Faberge, Inc., 273 Md. 538 , 332 A.2d 11 (1975), are irrelevant with respect to a determination of foreseeability for proximate cause purposes.

We note that, in determining whether a duty exists or in determining proximate cause, the relevant inquiry is the same, ¹⁴⁵ ie., whether the general type of harm sustained was foreseeable. See Eagle-Picher, 326 Md. at 194-97 , 604 A.2d 445 ; Henley v. Prince George’s County, 305 Md. 320, 333-337 , 503 A.2d 1333 (1986); Stone, supra. In Stone , a ease which did not involve a duty to warn, the plaintiff was unable to get a home equity loan because the defendant had failed to record timely the release of an extinguished lien. Stone, 330 Md. at 332-33 , 624 A.2d 496 .

As a result, the plaintiff alleged he had to sell stock at a substantial loss in order to meet a margin call. Id. at 333 , 624 A.2d 496 . The defendants had no knowledge that the plaintiff was in the stock market or that he was in a financial crisis. Id. at 333 , 624 A.2d 496 .

Moreover, the negligent act occurred a year prior to the harm. Id. at 332-33 , 624 A.2d 496 . The Court held that the plaintiffs losses were unforeseeable and cited Moran , a duty to warn case, as authority for the general field of danger test. Id. at 337, 624 A.2d 496 .

Indeed, it is arguable conceptually that the concept of foreseeability is less expansive as an element of duty than as an element of proximate cause. Foreseeability, in the context of determining the existence of a duty, involves prospective consideration of facts existing at the time of the conduct. Foreseeability, as an element of proximate cause, permits a retrospective consideration of the facts. For present purposes, it is a sufficient answer to appellees’ argument to observe that foreseeability is an element in the determination of a duty and in the determination of proximate cause and is defined the same in each. 3.

Intervening Force and Superseding Cause Next, appellees contend that “Mrs. Yonce’s informed choice to undergo the second amniocentesis and the unfortunate occurrence of a statistically rare and virulent infection intervened to cause the miscarriage.” We part ways with appellees when they declare that those two intervening forces became superseding causes. ¹⁴⁶ According to Restatement (Second) § 442, six factors should be evaluated when determining whether an intervening force rises to the level of a superseding cause: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the