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DONALD L. ELLIS v. ALFRED J. SHERMAN (10/03/86)

decided: October 3, 1986.

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., APPELLEES



Appeal from the Order of the Superior Court of Pennsylvania, Harrisburg District, dated June 29, 1984 at No. 192 HSB 1983. Appeal from the Order of the Superior Court entered June 29, 1984 at No. 192 HBG 1983, affirming the Order of the Court of Common Pleas of Dauphin County, Civil Division, entered April 28, 1983 at No. 1314 S 1982. 330 Pa. Super. Ct. 42, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Flaherty

[ 512 Pa. Page 16]

OPINION OF THE COURT

The issue in this case is whether a child born with a hereditary disease may recover, in his own right, against medical doctors who treated his parents prior to his birth and who failed to inform the parents that the child might be born with a hereditary disease transmitted by the father. The essence of the child's claim is that he was injured by being born, that nonexistence is preferable to a diseased life of suffering.

The plaintiff in this case, Donald L. Ellis, III was born on April 16, 1980. He has a virulent form of neurofibromatosis (von Recklinghausen's Disease), which was transmitted genetically by his father, who has a mild form of the disease. See Speck v. Finegold, 497 Pa. 77, 81 n. 2, 439 A.2d 110, 112 n. 2 (1981) for a general description of neurofibromatosis. The parents allege they were unaware prior to the child's birth that the father had the disease or that it could be genetically transmitted. While the father's manifestations of the disease have been limited to spots and lesions of the skin, the child's manifestations include severe mental retardation, physical and motor development delay, deformity, and seizures.

[ 512 Pa. Page 17]

On April 14, 1982, the Ellises, individually and in a separate action, on behalf of their son, sued in Trespass and Assumpsit the medical doctors who treated the father since childhood for a skin condition caused by a relatively minor form of neurofibromatosis; the surgeon who treated the father for this skin condition; and the doctors who treated and advised the Ellises with regard to the conception and birth of their son. The complaint alleges that although the first defendant treated the father for a skin disease, and although the surgeon removed skin lesions and even diagnosed them as being caused by neurofibromatosis, neither doctor told the father what his skin condition was or that it could be genetically transmitted. The complaint against the obstetricians is that although they took a medical history during which the mother told them that the father had a "skin condition," they failed to inquire further to discover the nature of the disease and whether it might be harmful to any child born to the couple. The Ellises state that if they had known of their risk of bearing a diseased child, they would have aborted the fetus.

The defendants filed preliminary objections in the nature of demurrers to each of the causes of action. The Court of Common Pleas upheld the parents' cause of action for medical malpractice as to all defendants, but dismissed their contract actions against the pediatricians and the surgeon as well as the child's medical malpractice action against all the doctors. The Ellises appealed the dismissal of the child's cause of action, and Superior Court affirmed. We granted allocatur solely to determine whether a child born with a debilitating disease may bring an action against medical practitioners who fail to advise his parents of the probability that he will be born with such a disease, thus foreclosing parental opportunity to avoid the pregnancy and to prevent his being born.

It is well established that in ruling on a demurrer, we are bound to accept as true all well-pleaded facts and to draw any inferences in favor of the plaintiff. In this case, the operative allegations and inferences are that all of the

[ 512 Pa. Page 18]

    doctor-defendants either negligently failed to diagnose the father's hereditary disease or, having diagnosed it, negligently failed to inform the parents of the existence of the disease so that they might exercise their right to avoid the birth of the diseased fetus.

In essence, this lawsuit is a medical malpractice action brought by a person who allegedly was injured by that malpractice, but who was not yet born at the time it occurred. The action is unusual in that the harmful act occurred prior to the plaintiff's birth, and unique in that plaintiff allegedly would not be alive but for the malpractice. The wrong for which plaintiff claims damages is that he was born, that he lives in his current physical and mental condition.

As in any medical malpractice action, in order to recover for the injuries alleged, the plaintiff must prove that doctor-defendant(s) owed him a duty of care; that they breached that duty; that the plaintiff was injured; and that the injuries were proximately caused by the defendant(s). Whether this action is legally cognizable will depend upon whether the plaintiff is able to establish each of these elements. Because it is our view that the child-plaintiff has not established that he was injured, we hold that the child has no cause of action for the alleged injury of his birth.

Firstly, we regard the assertion that the child has been injured by its existence as too speculative for us to determine. There is no question but that a diseased person has burdens not experienced by a healthy person. The uncertainty is, however, whether those burdens are so excessive that non-existence is, as a matter of law, preferable, for that is the essence of the complaint. Because of the nature of the complaint, in which the value of existence (a condition allegedly caused by defendants) is set off against the value of nonexistence (the condition allegedly ...


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