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LAWRENCE J. WILLINGER v. MERCY CATHOLIC MEDICAL CENTER SOUTHEASTERN PENNSYLVANIA (10/06/78)

SUPREME COURT OF PENNSYLVANIA


decided: October 6, 1978.

LAWRENCE J. WILLINGER, JR., ADMINISTRATOR OF THE ESTATE OF LEONARD WILLINGER, DECEASED, APPELLANT AT NO. 246,
v.
MERCY CATHOLIC MEDICAL CENTER OF SOUTHEASTERN PENNSYLVANIA, FITZGERALD MERCY DIVISION, APPELLANT AT NO. 247, AND DR. MARTIN T. BRENNAN AND DR. JOSEPHINE L. GO

Nos. 246 and 247 January Term, 1977, Appeals from Judgment of Superior Court of Pennsylvania, No. 610 October Term, 1976, dated June 28, 1976, remanding case to Court of Common Pleas of the County of Delaware at No. 13819 of 1969 In Trespass.

COUNSEL

Beasley, Hewson, Casey, Colleran & Stopford, Jeffrey M. Stopford, Philadelphia, for Lawrence J. Willinger.

F. Kirk Adams, Stewart C. Crawford, Springfield, for Mercy Catholic Medical Center.

John S. J. Brooks, Media, for appellee, Brennan.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion in which Manderino, J., joins.

Author: Roberts

[ 482 Pa. Page 443]

OPINION OF THE COURT

A jury awarded appellant Lawrence J. Willinger, Jr., $455,199.75 in a wrongful death and survival action against appellee Mercy Catholic Medical Center. Appellant had

[ 482 Pa. Page 444]

    brought the action to recover for the death of his son, Leonard. The Superior Court, in a unanimous opinion, affirmed the lower court's order as to appellee's liability, but remanded for a new trial on the issue of damages. The Superior Court held the trial court's charge erroneous.*fn1 Lawrence Willinger and Mercy Catholic Medical Center each appealed from the Superior Court decision.*fn2

The facts giving rise to this controversy are not disputed. On June 2, 1969, appellant's five year old son, Leonard, entered Mercy Catholic Medical Center for a tonsillectomy. The medical records indicate that on the day of the operation he was in excellent health. In preparation for the surgery, Leonard was placed under anesthesia. A nurse anesthetist negligently administered the anesthesia. As a result, Leonard's heart stopped beating for a period of between four and twenty minutes. When the doctor who was to perform the operation arrived in the operating room,

[ 482 Pa. Page 445]

    he quickly revived Leonard's heartbeat. The prolonged cardiac arrest, however, caused Leonard to suffer serious brain damage, which, on July 23, 1969, caused his death.

Appellant Willinger urges this Court to reinstate the trial court's award of damages. The trial court's charge to the jury with regard to damages under the Survival Act,*fn3 was:

"Here are three items to consider [under the survival action]. First, pain and suffering . . .

The second item is compensation for loss of future earnings for the working life expectancy of the deceased, less the probable cost of his maintenance reduced to present worth.

The third item, any loss that may have been sustained as a result of the loss of amenities or pleasures of life.

Leonard had a legal interest in a continuation of his life . . . the plaintiff, that is, Mr. Willinger, as the administrator of the estate, for the loss of those years of life which you determine the decedent might otherwise have spent on this earth. We are not talking about loss of life as such because loss of life is not compensable. What we are talking about is the loss of life's pleasures.

I am not going to go into any great explanation on it. An individual has a right to enjoy life, to marry, if you will, to work, to enjoy hunting, enjoy fishing, enjoy watching ball games, even box lacrosse, if you want, all these sorts of things. And if that was cut off because of the negligent act of either or both of these defendants, which was the proximate cause thereof, you can make an award to Leonard Willinger's estate for that loss."

Appellant would have us hold that it is not error for a trial court to instruct the jury that, under the Survival Act, it may separately consider an award compensating for the decedent's "loss of life's pleasures".*fn4

[ 482 Pa. Page 446]

The rule is well established in Pennsylvania, however, that compensation for the loss of life's amenities is recoverable only if the victim survives the accident giving rise to the cause of action. Any other rule would be contrary to the compensatory objective of awarding damages to tort victims. We, therefore, affirm the Superior Court's determination that the trial court committed reversible error when it instructed the jury that it could separately consider and award damages for loss of life's pleasures.

In Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971), we held that a decedent's estate could recover damages for pain and suffering and loss of gross earning power from the date of injury until death. Damages from the time of death through decedent's estimated working lifespan were limited to loss of earning power less personal maintenance expenses. In reaching this holding we stated:

"Quite properly, the injured plaintiff should receive as damages his total estimated future earnings undiminished. But if such a plaintiff dies, his action, whether commenced or continued by his personal representative, is for the benefit of the estate. We cannot be blind to the reality that neither the deceased person nor his estate is burdened with the personal maintenance costs of the decedent . . . If we were seeking to compensate for the loss of life itself, it may be true that the best approximation of the value of that life could be cast in terms of an individual's personal

[ 482 Pa. Page 447]

    maintenance costs. It has never been the law in Pennsylvania, however, nor do we here choose to hold that the loss of life itself is compensable."

Id., 444 Pa. at 308, 282 A.2d at 229. We discern little or no distinction between seeking to calculate the value of "life itself" and the value of experiencing life's pleasures. Were we to permit compensation for loss of "life itself", undoubtedly this intangible item would have to be measured in terms of the loss of those very opportunities to enjoy family, work, and recreation the trial court directed the jury to consider in measuring the loss of life's pleasures. Thus, to permit a jury to award damages to the estate for the decedent's loss of life's pleasures in effect authorizes a type of recovery expressly repudiated in Incollingo.

Even where the victim survives a compensable injury, this Court has never held that loss of life's pleasures could be compensated other than as a component of pain and suffering. Indeed, the two types of loss are interrelated. As this Court stated in Corcoran v. McNeal, 400 Pa. 14, 23, 161 A.2d 367, 372-73 (1960):

"The loss of well-being is as much a loss as an amputation. The inability to enjoy what one has heretofore keenly appreciated is a pain which can be equated with the infliction of a positive hurt. The conscious loss of a benefit to which one is entitled hurts as much as a festering wound."

Thus, to a large extent it has been the plaintiff's consciousness of his or her inability to enjoy life that we have compensated under the rubric of "loss of life's pleasures". Unlike one who is permanently injured, one who dies as a result of injuries is not condemned to watch life's amenities pass by. Unless we are to equate loss of life's pleasures with loss of life itself, we must view it as something that is compensable only for a living plaintiff who has suffered from that loss. It follows that, under Incollingo, damages for the pain and suffering that may flow from the loss of life's pleasures should only be recovered for the period of time between the accident and the decedent's death.

[ 482 Pa. Page 448]

Judge Hoffman, writing for the Superior Court, persuasively rejected the conclusion appellant urges us to reach.

"Thus, case law upholds the distinction between loss of life, in which loss of life's amenities is not compensable, and impairment of a living person's faculties, in which instance such loss is recoverable. Therefore, the lower court's statement of the law was erroneous. We resist the lower court's attempt to expand the right of recovery in wrongful death and survival actions to include loss of life's amenities. The problem of translating the loss resulting from an accident into money damages is always a complex and often imprecise calculation. However, our courts and legislature have established some guidelines to assist the jury in compensating loss -- loss of life's pleasures or amenities is simply not one of the elements of recovery in wrongful death and survival actions."

Willinger v. Mercy Catholic Medical Center, etc., 241 Pa. Super. 456, 469, 362 A.2d 280, 286-87 (1976) (footnote omitted).

Accordingly, the Order of the Superior Court is affirmed.

LARSEN, Justice, dissenting.

This case was originally assigned to me. I submitted the following opinion as a majority opinion, for which there were insufficient votes. This is now submitted as a dissent.

On June 2, 1969, decedent, a patient at defendant Mercy Catholic Medical Center (herein referred to as "defendant hospital"), suffered a cardiac respiratory arrest during preoperative preparation for a tonsillectomy. Decedent suffered brain damage from said arrest and this brain damage eventually caused his death on July 23, 1969.

Plaintiff, decedent's father, filed suit against defendant hospital in the Delaware County Court of Common Pleas, alleging that defendant hospital was negligent in its treatment of decedent. Defendant hospital joined Dr. Martin T. Brennan (decedent's surgeon) and Dr. Josephine L. Go (decedent's

[ 482 Pa. Page 449]

    anesthesiologist) as additional defendants. A jury trial commenced and at the completion of all testimony, the trial court granted additional defendant Brennan's motion for a directed verdict. The case against defendant hospital and additional defendant Go was submitted to the jury which rendered a verdict in favor of plaintiff against defendant hospital in the amount of $450,000 under the Survival Act.*fn1 Additional defendant Go was absolved of all liability.

Defendant hospital's post-trial motions were denied by the trial court and defendant hospital appealed to the Superior Court, alleging 1) that the trial court erred in instructing the jury that it could award damages to the plaintiff under the Survival Act for decedent's "loss of life's pleasures" and 2) that the trial court erred in refusing to allow defendant hospital to amend its complaint against additional defendant Go. The Superior Court held that the trial court did not err in refusing to allow defendant hospital to amend its complaint against additional defendant Go, but that the trial court did err in instructing the jury that it could award damages to the plaintiff under the Survival Act for decedent's "loss of life's pleasures". Accordingly, the Superior Court granted a new trial, limited only to damages. Willinger v. Mercy Catholic Medical Center, 241 Pa. Super. 456, 362 A.2d 280 (1976). Both plaintiff and defendant hospital filed petitions for allowance of appeal to this Court; said petitions were granted.

In this appeal, plaintiff contends that the Superior Court erred in holding that the trial court acted erroneously in instructing the jury that it could award damages to the plaintiff under the Survival Act for decedent's "loss of life's pleasures". The trial court's charge read, in pertinent part:

"Here are three items to consider [under the survival action]. First, pain and suffering . . .

[ 482 Pa. Page 450]

The second item is compensation for loss of future earnings for the working life expectancy of the deceased, less the probable cost of his maintenance reduced to present worth.

The third item, any loss that may have been sustained as a result of the loss of amenities or pleasures of life. . . . Leonard [decedent] had a legal interest in a continuation of his life . . . [If you find either defendant liable,] you can compensate the plaintiff, that is, Mr. Willinger, as the administrator of the estate, for the loss of those years of life which you determine the decedent might otherwise have spent on this earth. We are not talking about loss of life as such because loss of life is not compensable. What we are talking about is the loss of life's pleasures.

I am not going to go into any great explanation on it. An individual has a right to enjoy life, to marry, if you will, to work, to enjoy hunting, enjoy fishing, enjoy watching ball games, even box lacrosse, if you want, all these sorts of things. And if that was cut off because of the negligent act of either or both of these defendants, which was the proximate cause thereof, you can make an award to Leonard Willinger's estate for that loss." (emphasis added).*fn2

The Survival Act provides that "any right or liability which survives a decedent may be brought by . . . his personal representative . . . as though the decedent were alive". Act of April 18, 1949, P.L. 512, art. VI, ยง 603,

[ 482 Pa. Page 451]

    loss of the pleasure of obtaining a spouse, of raising children, of pursuing a vocation, of learning, of participating in social and sports activities and all those factors (physical, spiritual, mental and emotional) which the culture realistically provides for the particular injured or deceased victim. The trial court, the late Judge Donald Orlowsky presiding, properly charged the jury.

Defendant hospital, in its appeal to this Court, asserts that the trial court erred in ruling that the defendant hospital could not amend its complaint against additional defendant Go. Three days after the trial commenced and more than three years after the statute of limitations had expired, defendant hospital moved to amend its complaint against additional defendant Go. Defendant hospital's original complaint against additional defendant Go alleged a cause of action based solely on Go's individual negligence. In its attempted amended complaint, defendant hospital alleged that a nurse negligently treated decedent in defendant hospital while acting in her capacity as an employee of Go and therefore, Go was vicariously liable for said nurse's negligence. Defendant hospital's allegation of vicarious liability raised a new cause of action against Go and since the statute of limitations had already expired, the lower court properly prohibited said amended complaint.*fn5 Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 325, 319 A.2d 914, 918 (1974).

The Superior Court's order, remanding this case for a new trial on damages, should be reversed and the judgment of the trial court should be reinstated.


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