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decided: December 31, 1982.


No. 81-1-48, No. 81-1-49, No. 81-1-50, Appeal from the Order of the Superior Court dated April 16, 1981, at No. 233 April Term, 1979, on Appeal from the Order dated February 5, 1979, of the Court of Common Pleas of Allegheny County, Civil Division, at No. 78-13176.


Richard S. Dorfzaun, Larry A. Silverman, Dickie, McCamey & Chilcote, Pittsburgh, for Robert Blockstein, M.D.

Byrd R. Brown, Doris A. Smith, Brown, Smith & Schwartz, Pittsburgh, for Jacqueline B. Mason.

Donald W. Bebenek, Nora Barry Fischer, Pittsburgh, for Western Pennsylvania Hosp.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C.j., files a concurring and dissenting opinion in which Flaherty, J., joins. Nix, J., files a concurring and dissenting opinion, in which McDermott, J., joins. Larsen, J., files a concurring and dissenting opinion.

Author: Roberts

[ 499 Pa. Page 485]


This is an action in assumpsit and trespass to recover damages in connection with the allegedly improper performance of a sterilization operation. The Court of Common Pleas of Allegheny County dismissed Mrs. Jacqueline Mason's complaint and sustained preliminary objections in the nature of a demurrer filed by defendants Dr. Robert Blockstein and Western Pennsylvania Hospital. On appeal, the

[ 499 Pa. Page 486]

Superior Court sitting en banc reinstated the complaint. 286 Pa. Super. 354, 428 A.2d 1366 (1981) (Price, J., dissenting). However, the members of the Superior Court were divided as to the nature of the damages which should be recoverable if proven at trial. Allowance of appeal was granted to all parties, and this appeal followed.

The complaint alleges that in June, 1974, Mrs. Mason was admitted to defendant West Pennsylvania Hospital where she underwent a bilateral tubal ligation performed by defendant Dr. Robert Blockstein. According to the complaint, the defendants negligently performed the sterilization operation and breached express and implied warranties that the operation "would prevent [Mrs. Mason] from incurring future pregnancies." Mrs. Mason subsequently became pregnant and, on January 2, 1977, gave birth by caesarean section. The child is not alleged to be in other than good health.

I. The Superior Court properly determined that the complaint alleges facts which, if proven, would entitle the plaintiff to relief under basic principles of the law of contract and tort. The alleged breach of warranties and negligent performance of the sterilization operation are asserted to be a direct cause of Mrs. Mason's pregnancy. It follows, therefore, that the costs associated with the pregnancy and delivery would be within both the contemplation of the parties to an express or implied warranty and the range of reasonably foreseeable consequences of the negligent performance of the surgical procedure. See Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981). Thus, if the plaintiff sustains her burden of proof, she is entitled to recover all medical expenses and lost wages related to pre-natal care, delivery, and post-natal care, as well as compensation for pain and suffering incurred during the pre-natal through post-natal periods.

II. In addition to these costs associated with pregnancy and childbirth, the complaint seeks to recover alleged damages for emotional distress and the expenses of raising

[ 499 Pa. Page 487]

    the child until the "age of maturity." We agree with the majority of the Superior Court and the majority of jurisdictions which have considered the issue that the financial and emotional costs of raising a healthy child are not compensable.*fn1 In light of this Commonwealth's public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child. As was stated twenty-five years ago by the Court of Common Pleas of Lycoming County,

"Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff's statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy."

Shaheen v. Knight, 11 D. & C.2d 41, 46 (1957).*fn2

Order of the Superior Court vacated, and record remanded to the Court of Common Pleas of Allegheny County for proceedings consistent with this opinion.*fn*

[ 499 Pa. Page 488]

O'BRIEN, Chief Justice, concurring and dissenting.

I agree with the opinion of Mr. Justice Roberts that plaintiff has sufficiently set forth causes of action in trespass and assumpsit. As stated in Cockrum v. Baumgartner, 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968 (1981), the instant action is "not an aspersion upon the value of the child's life. It is instead a recognition of the importance of the parent's fundamental right to control their [sic] reproductivity." Id. 99 Ill.App.3d at 273, 54 Ill.Dec. at 753, 425 N.E.2d at 970. Accord Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977).

However, I disagree that the benefits of joy, companionship and affection which a healthy, unplanned child may provide outweigh, as a matter of law, the cost of raising such a child. I see no justifiable reason to differentiate between the present case and our decision in Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981), allowing the plaintiffs to seek damages for the cost of raising their genetically defective child. Any other result is inconsistent. It is not the relative health of the child, but is instead the alleged negligence of the physician, that gives rise to all damages that are foreseeable. "The ...

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