No. 1046 Pittsburgh, 1983, Appeal from Order of the Court of Common Pleas, Civil Division, of Erie County, No. 1563 - A - 1983.
Robert Lesuer, Erie, for appellants.
Irving Olds Murphy, Erie, for appellees.
Wieand, Tamilia and Popovich, JJ.
[ 329 Pa. Super. Page 440]
May a child afflicted with Tay-Sachs disease maintain an action to recover damages against laboratories and physicians
[ 329 Pa. Super. Page 441]
who failed to determine prenatally that the child was or probably would be so afflicted in sufficient time to prevent his birth? The trial court held that a "wrongful life" action could not be maintained and sustained preliminary objections in the nature of a demurrer to the child's complaint.*fn1 We affirm.
"Upon demurrer, a reviewing court must regard as true all well pleaded facts and reasonable inferences deducible therefrom." Klein v. Raysinger, 504 Pa. 141, , 470 A.2d 507, 508 (1983). However, a court is not bound by the conclusions of law advanced in the complaint. Cunningham v. Prudential Property and Casualty Insurance Co., Pa. Super. (Slip Op. at 3-4) (J. 1759/83; filed March 2, 1984). "Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained." Greenspan v. United Services Automobile Association, 324 Pa. Super. 315, 318, 471 A.2d 856, 858 (1984), quoting Rose v. Wissinger, 294 Pa. Super. 265, 270, 439 A.2d 1193, 1196 (1982).
The complaint in the instant case contains averments that Gregory Rubin was identified in 1977 as a carrier of Tay-Sachs disease. Tests performed on his wife, Anita, were inconclusive. Therefore, in October, 1978, Mr. and Mrs. Rubin consulted Richard Eisenberg, M.D., who made arrangements for Mrs. Rubin to be tested for Tay-Sachs at Hamot Medical Center in Erie. These tests were completed on October 26, 1978, according to the averments of the complaint, and were positive. Nevertheless, neither Eisenberg nor Hamot conveyed this information to the Rubins. Anita Rubin became pregnant in June, 1979. John G. Guthleben, M.D., attended Mrs. Rubin throughout her pregnancy and delivered Daniel, a male child, on March 21, 1980.
[ 329 Pa. Super. Page 442]
Although Dr. Guthleben knew that Gregory Rubin was a carrier and that Anita Rubin had been tested at Hamot Medical Center, it is alleged that he neglected to inquire or otherwise ascertain the results of the tests performed at Hamot Medical Center.*fn2 Daniel is now afflicted with Tay-Sachs. The failure of the physicians and testing laboratories to ascertain and notify the Rubins that both parents were carriers, it is alleged, was negligence which caused Daniel's conception and prevented a timely abortion. It is also alleged that the child was a third party beneficiary of the contracts for medical and testing services which his parents entered with appellees. Damages are sought on behalf of Daniel for the pain and suffering caused to him by Tay-Sachs disease.
In Speck v. Finegold, 268 Pa. Super. 342, 408 A.2d 496 (1979), this Court held that the claim of a child born with neurofibromatosis for damages in permitting her wrongful birth did not present a ...