¶1dissenting.
¶2The new cause of action which the Court now adds to Indiana's legal landscape has two extremely unattractive features.
¶3First, this new tort exposes medical providers to decades or even generations of potential liability. A physician whose treatment of a patient may cause adverse consequences to the patient's future children will be subject to liability until the eighth year after the last child is born. Moreover, it seems probable that some treatments have consequences which pass beyond the second generation and into the third. This is a very long liability tail indeed. It is among the reasons the New York Court of Appeals elected not to start down this trail. See Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198 (1991).
¶4Second, I think these will be ugly lawsuits. The majority passes lightly over the role of the parents in this case, saying it chooses not to debate whether the parents should have conceived additional children or not after they learned of the health hazards of doing so. Foreswearing debate of this considerable moral choice, the majority flatly declares that their decision to *598conceive is not an efficient intervening cause which can be a basis for summary judgment. Actually, under today's decision, the Walkers can create liability for Doctor Rinck by choosing to conceive or eliminate his liability to future children by choosing not to conceive. This seems about as efficient as an intervening cause can get. Inasmuch as this issue is now not resolved on summary judgment, it will now be put to a series of juries. The evidence for and against will not be very pretty, and the predictability of the law as fashioned by juries case-by-case is likely to be erratic.
¶5The real cause of action and the most serious damage in this case is the Walker's loss of their potential to bear additional children secure in the knowledge that those will likely be healthy children. If that were the cause of action at issue today, I would vote for the Walkers.
¶6GIVAN, J., concurs.
¶7GIVAN, Justice, dissenting in part.
¶8The majority opinion correctly observes that Judge Staton dissented to the Court of Appeals opinion in this case. However, I would note that Judge Staton's dissent did agree with the majority opinion in that "Mr. and Mrs. Walker's conduct operated as an intervening superseding cause with respect to the twins, Jennifer and Kathy, I cannot agree that the parents had knowledge of the RH-sensitization and its ramifications prior to the conception of Nathan."
¶9In Yeager v. Bloomington Obstetrics (1992), Ind.App., 585 N.E.2d 696, the Court of Appeals opinion, which this Court is affirming, alluded to Walker v. Rinck and to Judge Staton's dissenting opinion. In that case, the Yeagers alleged in their complaint that the defendants failed to advise Lorraine Yeager that she had developed an RH sensitization and should avoid further pregnancies. The opposite is true in the Walker case. At least after the birth of Nathan, the Walkers were fully advised of their situation and had full knowledge that future pregnancies might result in birth defects.
¶10To say that the defendants would be responsible for birth defects in children conceived after the parents received such knowledge is to hold that parents with such knowledge could continue to produce children and each time a defective child was produced the defendants would be subject to damages. I agree with Judge Staton's observation in his dissenting opinion that this is not a proper extension of Hability.
¶11I therefore would remand the case to the trial court for damages only as to Nathan.