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DONALD L. ELLIS v. ALFRED J. SHERMAN (06/29/84)

filed: June 29, 1984.

DONALD L. ELLIS, JR. AND JEANNI E. ELLIS, INDIVIDUALLY AND AS GUARDIANS OF THE MINOR DONALD L. ELLIS, III, APPELLANTS,
v.
ALFRED J. SHERMAN, M.D., JOHN G. GOEDECKE, ROBERT E. STEVENSON, M.D., DONALD F. POST, M.D., SHERMAN ASSOCIATES, PAUL A. WENGERT, M.D., JAMES E. JONES, M.D. AND JAMES DALY, M.D.



No. 00192 HBG 83, Appeal from the Order entered April 28, 1983 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 1314 S 1982.

COUNSEL

Charles M. Tobin, Silver Springs, for appellants.

James W. Evans, Harrisburg, for Sherman, M.D., appellee.

Linda S. Porr, Harrisburg, for Wengert, M.D., appellee.

C. Kent Price, Harrisburg, for Daly, M.D., appellee.

Wickersham, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 330 Pa. Super. Page 43]

The sole issue on appeal is whether the lower court correctly dismissed the infant-appellant's cause of action for "wrongful life". We conclude that the lower court properly held that a "wrongful life" action is not legally cognizable in Pennsylvania. Accordingly, we affirm.

The record in the instant case discloses the following facts.*fn1 Throughout his childhood and adolescence, appellant Donald Ellis, Jr., was treated by appellee-pediatricians,

[ 330 Pa. Super. Page 44]

Drs. James Jones and James Daly, for a recurrent skin condition, manifested by minor skin discolorations and occasional lesions. Appellant claims that he was never informed of the true nature of his disease. In the summer of 1978, appellee-surgeon, Dr. Paul Wengert, removed several skin lesions from appellant and informed him that the lesions were not malignant. Subsequently, in 1979, appellant Jeanni Ellis consulted with appellee-obstetrician, Dr. Alfred Sherman, prior to and after conceiving a child. During the course of an early consultation, when Mrs. Ellis was asked about her family's medical history, she indicated that her husband suffered from a skin disease. Dr. Sherman probed no further into this comment. In fact, according to the lower court, "Dr. Sherman indicated that Mr. Ellis' disease would have no bearing on the health of plaintiff's future child." (Lower Court Opinion at 3). In April, 1980, Mrs. Ellis gave birth to Donald Ellis III (Donnie). At approximately five months of age, Donnie suffered from seizures that were subsequently diagnosed as manifestations of Von Recklinghausen's Disease.*fn2 Because of his disorder, Donnie suffers from severe mental and physical disabilities. Appellants, who after Donnie's diagnosis learned that Mr. Ellis is a carrier of Von Recklinghausen's Disease, assert that had they known the nature and possible genetic consequences of Mr. Ellis' condition, they would have employed all precautions to avoid conceiving any children.

On April 14, 1982, appellants filed a complaint in trespass and assumpsit raising five distinct causes of action -- four on behalf of themselves and one on Donnie's behalf. In the first count, appellants claimed that all of the several appellees negligently failed to exercise the requisite duty of care in their treatment of and consultation with appellants. The second and third causes of action alleged that Drs. Jones, Daly ...


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