No. 2027 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Pennsylvania, Civil Action - Law, at No. 246 March Term, 1976
Paul A. Barrett, Scranton, for appellants.
Thomas J. Foley, Jr., Scranton, for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, Spaeth and Hester, JJ., file concurring and dissenting statements. Van der Voort, J., files a concurring and dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 288 Pa. Super. Page 438]
This is an appeal by appellant-physicians, Doctor Donald S. and Nestor G. deQuevedo, from an order of the Court of Common Pleas of Lackawanna County that overruled their demurrers to appellee-plaintiffs' complaint for recovery of damages incident to an alleged wrongful birth of their son occurring by reason of the alleged negligence of the physicians. Since the issue involved is one that concerns a "controlling question of law as to which there is a substantial ground for difference of opinion,"*fn1 we allowed the appeal from the interlocutory order. We affirm in part and reverse in part.
The record reveals that appellees, Phyllis and Howard Stribling decided that Phyllis would be sterilized. In December, 1971, Phyllis went to appellants, who performed a bilateral tubal ligation on her and, allegedly, the Striblings were assured of the success of the surgery. Despite the operation, however, Phyllis became pregnant and gave birth
[ 288 Pa. Super. Page 439]
to a son in September, 1974. This child was born with dextrocardia, a condition in which one's heart is farther to the right than is normal. The parents allege that this condition will require medical care and treatment.
The parents brought this action in trespass against the physicians based on three counts. In the first count, Phyllis sued for the recovery of her mental and emotional distress and physical pain she suffered at the time of and subsequent to the operation. She also seeks recovery for her lost earnings and earning capacity as the result of the birth of her son. In the second count, Howard, the plaintiff husband, sued the physicians for the medical and rearing expenses he has incurred and will incur relating to the birth of his son, along with recovery for his wife's medical expenses and loss of consortium. The third count also seeks recovery on the child's part for the damages he will sustain as a result of having been born with dextrocardia.
The complaint also alleges that the physicians were negligent in their failure to advise the parents of "the possible sequelae of the operation," in their failure to take the necessary steps to sterilize Phyllis so that she would not become pregnant, in their misrepresentation of the benefits of the operation, and their failure to use the necessary care and skill required of physicians in the community.*fn2
To this complaint appellants filed preliminary objections, first in the nature of a demurrer alleging that no cause of action existed upon which the parents could claim relief. On a demurrer to the complaint the lower court accepts as true all the pertinent allegations in the complaint when deciding the merits of the preliminary objections. ...