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JACQUELINE B. MASON v. WESTERN PENNSYLVANIA HOSPITAL (04/16/81)

filed: April 16, 1981.

JACQUELINE B. MASON, APPELLANT,
v.
WESTERN PENNSYLVANIA HOSPITAL, A CORPORATION, AND ROBERT BLOCKSTEIN, M. D.



No. 233 April Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, at No. GD 78-13176.

COUNSEL

Byrd R. Brown, Pittsburgh, for appellant.

Nora Fischer, Pittsburgh, for Western Pennsylvania Hospital, appellee.

Richard S. Dorfzaun, Pittsburgh, for Blockstein, appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Brosky, and Hoffman, JJ. Brosky, J., files a concurring opinion. Spaeth, J., files a concurring and dissenting opinion. Hester, J., files a concurring and dissenting opinion, in which Cercone, President Judge, and Hoffman, J., join. Price, J., files a dissenting opinion.

Author: Cavanaugh

[ 286 Pa. Super. Page 356]

This is an appeal by the plaintiff-mother (appellant) from an order of the court below sustaining defendants' (appellees) demurrer to plaintiff's complaint for recovery of damages for the wrongful birth of appellant's child. A baby was born to appellant on January 2, 1977 despite the fact that a tubal ligation had been performed on the appellant on June 11, 1974 by defendant Dr. Blockstein at defendant hospital. Appellant's complaint was based on two causes of action: (1) that defendants breached their express and implied warranties that the sterilization procedure which appellant underwent would prevent future pregnancy, and (2) that defendants were negligent in performing the tubal ligation upon appellant. Appellant sought damages for mental anguish, pain and suffering and inconvenience resulting from the pregnancy and subsequent caesarian section; medical costs and expenses for delivery of the child; and expenses for support and maintenance of the child.

The lower court held that it is against the public policy of this state to recognize claims in trespass or assumpsit for the birth of a child. However, subsequent to the lower court's decision, this court has held to the contrary in Speck v. Finegold, 268 Pa. Super. 342, 408 A.2d 496 (1979), allocatur granted December 18, 1979, and Stribling v. deQuevedo, Pa. Super. , 432 A.2d 239 (1980).

[ 286 Pa. Super. Page 357]

In Speck, a child was born following unsuccessful vasectomy and abortion attempts. The infant suffers from neurofibromatosis, a crippling disease of the nervous system. The parents did not want a child and took measures to prevent conception and birth because of their deep-rooted fear that such a child would be born with this hereditary disease. The child's father and the child's two sisters also suffer from neurofibromatosis.

Mr. and Mrs. Speck brought suit on behalf of the child for "wrongful life" and in their own right for pecuniary expenses they had borne and would bear for the care and treatment of the infant and also seeking to recover for emotional, mental and physical injuries and expenses suffered by them as parents as a result of the birth of their child. Although we denied the infant's claim for wrongful birth, we allowed the parents' claim, stating:

Here there is no dispute the pleadings allege the existence of a duty flowing from the defendant-physicians to themselves, the breach of which resulted in the birth of Francine. The alleged negligence and misrepresentations of both doctors and by the alleged breach of contract by Dr. Finegold has also been adequately pleaded. Unlike Francine's claim based on "wrongful life," plaintiff-parents' causes of action allege in traditional tort language that but for defendants' breach of duty to properly treat and advise plaintiff-parents they would have not been required to undergo the expenditures alleged. In these allegations plaintiff-parents set forth a duty owed to them by the doctors and breached by the doctors with resulting injuries to the plaintiffs.

Thus, Speck established that parents have a cognizable cause of action for damages they have borne and would bear for the care and treatment of a child born following negligently performed sterilization procedures.

Therefore, in the case before us we must determine whether, accepting as true all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom, the plaintiff's complaint sets forth a cause of

[ 286 Pa. Super. Page 358]

    action. See Bear v. Reformed Mennonite Church, 462 Pa. 330, 341 A.2d 105 (1975); Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). First, we address appellant's claim of negligence in the performance of the tubal ligation. Because the appellant alleges a duty on the part of appellees, the breach of that duty by appellees, which breach proximately caused the damages suffered by the injured parties, a cognizable cause of action has been alleged. Restatement of Torts (Second) § 281. We therefore overrule the granting of the demurrer by the court below as to the alleged negligence of appellees.

The lower court also granted a demurrer as to appellant's claim of breach of warranty by the appellees. In her complaint, Mrs. Mason alleges as to both Western Pennsylvania Hospital and Dr. Blockstein that on or about June 11, 1974, a contract arose "whereby defendant promised, warranted and agreed to perform a bilateral tubal ligation upon plaintiff and defendant warranted that said bilateral tubal ligation would prevent future pregnancy."

In the absence of a special contract, a physician is neither a warrantor of a cure, nor a guarantor of the result of his treatment. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Carl v. Matzko, 213 Pa. Super. 446, 249 A.2d 808 (1968). The physician is not expected to guaranty a good result from the course of treatment recommended or administered. Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974), see also McCandless v. McWha, 22 Pa. 261 (1853) (no implied "warranty of cure" in Pennsylvania). A physician, however, may bind himself by an express contract to obtain specific results by treatment or an operation. Consideration for this guaranty must be shown. 61 Am.Jur.2d, Physician, Surgeons and Other Healers, § 149 at 279.*fn1 A special contract whereby

[ 286 Pa. Super. Page 359]

    a physician warranted a particular result was held to exist in the case of Shaheen v. Knight, 11 Pa. D. & C.2d 41 (1957). In Shaheen a patient alleged that his physician had breached a contract to sterilize him, which breach resulted in the birth of his fifth child. The court rejected the physician's "implied warranty of cure" argument in holding that the patient was suing under a special contract by which the physician agreed to make him "immediately and permanently sterile and guaranteed the results thereof."*fn2 The court stated:

A doctor and his patient . . . are at liberty to contract for a particular result. If that result be not attained, the patient has a cause of action for breach of contract. The cause of action is entirely separate from malpractice, even though both arise out of the same transaction. The two causes of action are dissimilar as to theory, proof and damages recoverable.

11 Pa. D. & C.2d at 44. Because Mrs. Mason in her complaint alleges an express warranty, supported by consideration, that the operation would result in sterility, a cause of action for breach of contract has been sufficiently set forth. Therefore, the lower court erred in granting defendant's demurrer as to this claim of an express warranty.

Appellees argue that this case is distinguishable from Speck and Stribling in that the baby born to Mrs. Mason is normal and healthy.*fn3 The Speck infant suffers from neurofibromatosis and the Stribling infant was born with dextrocardia, a condition in which one's heart is farther to the

[ 286 Pa. Super. Page 360]

    right than is normal. However, our decisions in Speck and Stribling provide no such basis for distinguishing these cases.

After carefully reviewing our decisions in Speck and Stribling, we find that the negligence of the physician and not the physical condition of the infant is at the crux of the matter. As we stated in Speck :

It is not contended by plaintiffs that defendant-physician's treatment of Mr. Speck in the sterilization procedure caused the abnormalities in their infant. But only that had plaintiffs been properly treated and cared for, their child would not have been conceived or born or if they had been sufficiently advised of the possibility of failed sterilization procedures they could have terminated the pregnancy within a prescribed time period by alternative methods of relief.

408 A.2d at 507. Thus, the cause of action we recognized in our holding in Speck is not based on the fact of the infant's ill health but on the breach of defendant-physician's duty and the resulting injuries to the plaintiffs.

As we stated in Speck, the question in determining whether a cause of action exists is not the worth and sanctity of life, but whether doctors were negligent in their surgical attempts at sterilization. 268 Pa. Super. at 355, 408 A.2d at 503. The parents in this case decided for socio-economic reasons*fn4 to bear no more children.*fn5 To achieve this end Mrs.

[ 286 Pa. Super. Page 361]

Mason underwent a tubal ligation. She alleges, following the birth of her child, that the operation was negligently performed and that she was injured thereby. Thus she has sufficiently set forth a cognizable cause of action.

We now turn to the issue of damages. In Speck and Stribling this court recognized the parents' right to recover for the costs of rearing the child and medical damages pertaining to the child's condition together with claimed medical, mental, emotional and physical pain and suffering caused by the operations. In view of this, the question before us is whether following the birth of a normal and healthy child the right to recover these damages exists.

Some jurisdictions deny recovery for the birth of a normal child on public policy grounds. See, e. g., Rieck v. Medical Protective Company, 64 Wis.2d 514, 219 N.W.2d 242 (1974). In Rieck v. Medical Protective Company, supra, it was stated that to hold that the complaint set forth a cause of action for recoverable damages "would open the way for fraudulent claims and would enter a field that has no sensible or just stopping point." 64 Wis.2d at 519, 219 N.W.2d at 244. A later Wisconsin case, Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975), allowed damages to parents of a deformed child born following a negligently performed vasectomy. The court, however, limited damages to those attributable to deformities of the child excluding expenses otherwise involved in rearing a normal child. The court stated:

Rieck must be distinguished from the case at hand because the parents there sought to recover the entire expense of raising a normal, healthy but claimed unwanted child during its dependency. Here the parents sue only for the expense occasioned by the congenital defects.

[ 286 Pa. Super. Page 36269]

Wis.2d 766, 233 N.W.2d at 376. See also Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975) where the court allowed recovery for costs reasonably related to the child's physical defects but excluded expenses to be incurred in rearing the child.

In light of Speck a distinction similar to that made by the Dumer court is not possible. In Speck this court did not limit the damages recoverable to those related to the child's illness but also allowed damages for expenses of rearing the child that would have been incurred were she normal and healthy. Thus it would be inconsistent to hold that parents of a deformed or diseased child may recover all expenses arising from the tortious conduct while not permitting any recovery for parents of a normal child given that the child in both cases is unwanted. As noted earlier this court in Speck stated that the issue is not the worth and sanctity of life, but the negligence of the physicians, and that a recovery of money would not be against public policy. 268 Pa. Super. at 355, 408 A.2d at 503. "Once the plaintiff has carried [the burden of proving negligence], it is axiomatic that the tort-feasor is liable for all damages which ordinarily and in the natural course of things have resulted from the commission of the tort." 268 Pa. Super. at 364, 408 A.2d at 508. Therefore, because of our disposition in Speck, we find no basis for distinguishing the "wrongful but healthy life" from the situations in Speck and Stribling in terms of entitlement to damages.

However, in determining the extent of damages recoverable we are faced with the question whether damages are to be reduced by the application of the "benefit rule," Restatement of Torts (Second), § 920. The benefit rule provides:

When the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.

[ 286 Pa. Super. Page 363]

Thus the value of a child's aid, comfort and society during the parents' life expectancy is to be considered as offsetting the cost of rearing the unplanned child. See Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).

Although President Judge Cercone discusses § 920 at length in the Speck opinion, he does not specifically decide whether the rule is to be applied, nor was it necessary to the holding in Speck to decide the issue. Nevertheless, we hold that the benefit rule in limiting damages will prevent a windfall to the parents and an undue financial burden being placed on the physician. Moreover, as this court noted in Speck, courts which have allowed recovery by parents for damages proximately caused by the physician's negligence, including the costs of rearing a healthy child, have ordinarily applied the benefit rule. See, e. g., Sherlock v. Stillwater Clinic, supra, and Anonymous v. Hospital, 33 Conn.Sup. 126, 366 A.2d 204 (1976) (both involving negligently performed sterilization); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971) (pharmacist misfilled prescription for oral contraceptive).

In a negligent sterilization case the Connecticut Superior Court stated:

The safer course in situations similar to the present case would appear to be to allow the allegations of the complaint to stand and to permit the defendants to argue in mitigation of damages the satisfaction, joy, and companionship, which normal parents receive in the rearing of a child and which make economic loss worthwhile. Although the specific ascertainment of damages in that area is difficult, that should not prevent their consideration by the trier of fact.

Anonymous v. Hospital, supra, 366 A.2d at 206. We agree. Thus, the jury may reduce the damages "by an amount representing the benefit that a child -- healthy or unhealthy -- would bring to the parents" (footnote omitted) Speck, supra, 268 Pa. Super. 374, 408 A.2d at 513 (Spaeth, J., concurring and dissenting). The damages ...


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