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decided: July 25, 1979.


No. 7 April Term, 1977, Appeal from the Order Entered on July 21, 1976, of the Court of Common Places of Allegheny County, Pennsylvania, Civil Division at No. GD 76-07752


Thomas Hollander, Pittsburgh, for appellants.

David H. Trushel, Pittsburgh, for appellee Finegold.

Bruce R. Martin, Pittsburgh, for appellee Schwartz.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a concurring and dissenting opinion. Spaeth, J., files a concurring and dissenting opinion. Jacobs and Van der Voort, JJ., did not participate in the consideration or decision of this case.

Author: Cercone

[ 268 Pa. Super. Page 346]

This case comes before us on plaintiffs' appeal from the lower court's order sustaining defendant-physicians' preliminary objections to certain allegations contained in plaintiffs' complaint.*fn1 The intended effect of the preliminary objections is to terminate plaintiffs' lawsuit on grounds that plaintiffs' action is contrary to law and public policy.*fn2 The matter before us, of first impression in the appellate courts of Pennsylvania, presents for judicial inquiry and decision the cognizability of an action in law brought by plaintiffs to recover damages against defendant-physicians whose alleged acts of negligence resulted in the birth of a child they feared would be born with mental and physical abnormalities. We affirm the order of the lower court in part and reverse and remand in part.

The difficulties presented in this case are aptly described in the words of Mr. Justice Blackmun in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, reh. den. 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973), a case overturning a Texas statute on constitutional grounds, concerning a woman's right to abortion:

[ 268 Pa. Super. Page 347]

"We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. . . .

"Our task, of course, is to resolve the issue by [resort to legal principles] free of emotion and predilection." 410 U.S. at 116, 93 S.Ct. at 709.

From its earliest days, the common law held to the principle that "in civil court the death of a human being could not be complained of as an injury." Baker v. Bolton, 1 Campb. 493, 170 Eng.Rep. 1033 (K.B. 1808). The reluctance of the judiciary to risk going beyond a principle that a tort died with its victim, Huggins v. Butcher, Brownl. & G. 205 (ed.3d.), 123 Eng.Rep. 756 (C.P. 1675), became the impetus to legislative recognition of the cause of action since known as a "wrongful death" action, now an everday source of litigation in the courts. See, generally, Prosser, Law of Torts 901 (4th ed. 1971).

The courts today are now drawn into a new era of legal theory, one testing the validity of a cause of action generally termed "wrongful life."*fn3 As stated by the New York Court of Appeals, "[e]ven as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for a wrongful causation of life itself casts an almost Orwellian shadow,

[ 268 Pa. Super. Page 348]

    premised as it is upon concepts of genetic predictability once foreign to the evolutionary process. It borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles." Becker v. Schwartz, 46 N.Y.2d 401, 408, 413 N.Y.S.2d 895, 898, 386 N.E.2d 807, 810 (1978).

However, this decision of the New York Court of Appeals, after raising the specter of improbabilities approaching the supernatural, comes to grips with reality and succumbs to the gravitational pull of human values when it finally concedes any such resolution, whatever it may be, must invariably be colored by notions of public policy, the validity of which remains, as always, a matter upon which reasonable persons may disagree.

Frank Speck, Jr. is a victim of the disease known as neurofibromatosis, a crippling disease of the fibrous structures of the nerves. In fact, his two children, Valerie and Lee Ann, are victims of this disease. In Lee Ann it is particularly crippling and disfiguring. Concerned with the possible recurrence of his affliction in a child conceived in the future, Frank and his wife, Dorothy, decided to limit the size of their family.*fn4 Frank decided it would be best if he were made sterile in order to prevent such a consequence. For this reason he went to defendant-physician, Dr. Finegold, a licensed physician and surgeon in urology, for his

[ 268 Pa. Super. Page 349]

    advice and treatment with respect to a vasectomy procedure.*fn5

After examining Mr. Speck, Dr. Finegold represented to him that a vasectomy operation would sterilize him. Pursuant to an oral agreement to that effect reached between the parties on April 28, 1974, Dr. Finegold performed the vasectomy. Following the operation, Dr. Finegold assured Mr. Speck that he was made sterile and that he could engage in sexual relations with his wife without contraceptive devices. (The complaint does not state any specific time had passed before Dr. Finegold made his reassuring statement.) Mr. Speck followed this advice and Mrs. Speck became pregnant. Worried that Mrs. Speck's pregnancy might result in the dreaded consequences they wished to avoid, the Specks then sought advice and treatment by defendant-doctor, Dr. Schwartz, a physician and surgeon practicing in the field of obstetrics and gynecology. Pursuant to an oral agreement, the parents engaged Dr. Schwartz to perform an abortion on Mrs. Speck in order to terminate her pregnancy. On December 27, 1974, Dr. Schwartz performed the abortion procedure and subsequently represented to the Specks that the operation was a success and that Mrs. Speck's pregnancy had been terminated. However, sometime after the operation, Mrs. Speck informed Dr. Schwartz that she felt her pregnancy was continuing. The doctor "again and persistently" assured and represented to the Specks that Mrs. Speck's fetus had been aborted. However, on April 29, 1975, Mrs. Speck gave birth to a premature child, Francine, afflicted with the crippling disease of neurofibromatosis. Throughout, the motivating purpose of the Specks' willingness to go through these procedures was to prevent the birth of another child who they feared might be born with mental and physical deficiencies.

Plaintiffs commenced this lawsuit based on a five-count complaint in trespass and assumpsit, seeking damages on

[ 268 Pa. Super. Page 350]

    behalf of the infant, Francine, for "wrongful life"; on behalf of their daughters, Valerie and Lee Ann, for economic hardship;*fn6 and in their own right, for the pecuniary expenses they have borne and will in the future bear for the care and treatment of their child, Francine. Plaintiffs' complaint also seeks damages for emotional, mental and physical injuries and expenses suffered by plaintiff-parents as the result of the birth of Francine and damages suffered by Frank Speck, Jr. occasioned by the loss of his wife's services. Additionally, plaintiffs claim damages for their personal expenses, pain and suffering, and emotional distress incident to the alleged negligence in the vasectomy and abortion surgeries.

Plaintiffs allege, inter alia, that Francine's birth was the direct and proximate result of the physicians' acts of negligence, breach of contract and misrepresentation in their incorrect medical advice, in their negligent and unskillful diagnosis, care and treatment and for actions of negligence catalogued as: failure to properly perform the surgeries in the possession, employment and exercise of that degree and skill, learning and care required of them as physicians and specialists in their given fields of medicine; in failing to conduct tests to ascertain the success or failure of the vasectomy and abortion procedures; in failing to inform them of the risks involved; and in representing to the plaintiffs that the operations were successful and for the intended purposes, when, in fact, the doctors knew*fn7 or

[ 268 Pa. Super. Page 351]

    should have known that they were not.*fn8

The lower court, on the basis of the defendant-doctors' demurrers, accepted the facts set forth in the complaint relating to the negligent acts alleged and found that plaintiffs had sustained and will sustain and suffer injuries and damages in the future,*fn9 but held that no relief was cognizable in law which would permit plaintiffs to recover money damages arising out of or related to the life of Francine. The lower court allowed Mr. Speck's claim for damages incident to the vasectomy to stand for trial. It disallowed Mrs. Speck's claim for damages incident to the abortion procedure because she misjoined her counts in the complaint with those of her husband in violation of Pa.R.C.P. 1020(d)(1), 1020(b), 1028(a), 2228, 2229(a). The lower court, however, has allowed her to amend that part of the complaint and we agree.*fn10

[ 268 Pa. Super. Page 352]

In denying all claims of plaintiffs relating to the birth of Francine, the lower court based its decision on grounds that any allowance of damages for her birth is not recognized in law and is against public policy, and, in addition, that the damages are of such speculative nature as to be immeasurable. The basis of the lower court's view of public policy is that estimating the worth and sanctity of life as against non-life is a task that goes beyond the ken of human understanding or resolution. We hold that the lower court's denial of all damages arising out of the birth of Francine is untenable. According to the lower court, a cloak of inviolability protects doctors and others in the medical profession when their acts of negligence relate to "wrongful birth" cases despite established principles of law which do not protect these same persons in other categories of negligent care. Thus, we do not agree with the lower court in its blanket protection of a tort-feasor in these cases. To agree with the lower court in the instant case would be to allow an infringement of fundamental rights, which infringements are impermissible in other cases involving negligent conduct. Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976), (negligent sterilization case); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967) (unsuccessful abortion case).

[ 268 Pa. Super. Page 353]

At the outset, the question presented for review is not to decide whether plaintiffs should ultimately prevail in this litigation, nor to decide what damages are recoverable if they do prevail, but rather to decide whether their complaint states a cognizable cause of action in law. Consequently, our problem, based on defendants' demurrers, is to decide whether plaintiffs have set forth a sufficiently cognizable lawsuit within the concept, purpose and function of the judicial process to have their claims considered by a court of law beyond and in addition to those allowed by the lower court. The merits of plaintiffs' claims, if cognizable at law, will be decided at trial where the doctors will also have the fullest opportunity to prove that they were not negligent nor responsible for plaintiffs' damages as alleged in plaintiffs' complaint. The question here, obstinate in its difficulty of solution, is whether and under what theory plaintiffs are entitled to recover.

The term "wrongful life" covers a multifaceted concept under which plaintiffs claim factually divergent wrongs in seeking judicial recognition and relief.*fn11 In this context, the instant case may appropriately be considered to carry three labels: (a) "wrongful conception" wherein Mr. Speck underwent an unsuccessful vasectomy procedure and together with his wife seeks damages against Dr. Finegold for the "wrongful birth" of a child arising out of a negligent sterilization procedure. This kind of action, as we will see, meets

[ 268 Pa. Super. Page 354]

    with mixed reaction by the courts;*fn12 (b) "wrongful birth" wherein Mr. and Mrs. Speck seek damages against Dr. Schwartz for the birth of a child attributed to a negligent abortion procedure, and a wrongful diagnosis of an existing pregnancy resulting in the deprivation of the mother's choice to terminate the pregnancy within the permissible time period;*fn13 (c) a "wrongful life" action where an unplanned child seeks recovery for injuries suffered because of the negligent failure to prevent its birth.*fn14 This kind of action has met with disapproval by the courts.*fn15

In reviewing the history of the cases on this subject, we find that the decisions which deny any recovery for "wrongful birth" do so, as did the lower court, primarily on the basis that the sanctity of life precludes a cognizable action in law and/or that it is impossible to measure damages between a child being born, ...

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