Mason v. Western Pennsylvania Hospital

428 A.2d 1366, 286 Pa. Super. 354

• Court: Superior Court of Pennsylvania
• Decided: August 24, 1981
• Docket: 233
• Status: Published

Opinions

CAVANAUGH, Judge:

This is an appeal by the plaintiff-mother (appellant) from an order of the court below sustaining defendants’ (appel-lees) demurrer to plaintiff’s complaint for recovery of dam-, ages 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).

In Speck, a child was born following unsuccessful vasectomy and abortion attempts. The infant suffers from neurofi-bromatosis, 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 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 279.¹ A special contract whereby 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.”² 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.³ The Speck infant suffers from neuro-fibromatosis and the Stribling infant was born with dextro-cardia, a condition in which one’s heart is farther to the 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 Stri-bling, 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 reasons⁴ to bear no more children.⁵ To achieve this end Mrs. 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.

69 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 Dinner 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: 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).

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.

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 recoverable, then, in a “wrongful but healthy life” case may be reduced due to the application of the benefit rule. It is also conceivable that the expenditure in rearing a mentally or physically defective child may not be offset by the child’s aid, comfort and society to the extent that expenses relating to a normal and healthy child may be offset thereby. However, any such determination as to the amount recoverable is within the province of the jury. In terms of entitlement to damages, as set forth above, no principled distinction can be made between the normal unwanted child and the physically or mentally impaired unwanted child.

Thus Mrs. Mason’s claims for damages due to pecuniary expenses in prenatal and postnatal care, as well as expenses relating to the rearing of the child, as offset by § 920, are allowable. Likewise, damages resulting from Mrs. Mason’s loss of earnings, physical pain and suffering and emotional distress incident to the negligent surgery are recoverable if proven. As we held in Speck and Stribling, however, damages arising from emotional and mental distress incident to the birth and rearing of the child are not recoverable. Although our discussion of such damages specifically addressed the problem of determining a legal realm of accountability for the pain and suffering of parents of mentally or physically deficient children, our conclusion is nonetheless applicable in the case of a normal child. In disallowing the Specks damages this court stated:

... our position is that all parents suffer some degree of stress, especially if a child is bom with a disabling condition. However, not all of these children are “unwanted” in any sense of that term, and the emotional anguish that they suffer may be a normal, uncomprehensible price one pays for being a parent. Therefore, to allow plaintiffs’ claim for mental and emotional stress would be to give them a societal advantage not conceivable in other cases of parenthood.

268 Pa.Super. at 367, 408 A.2d at 509. In view of this reasoning, the parents of a normal, healthy child should not be given a societal advantage over other parents of such children. Mrs. Mason’s claim for mental distress must be denied.⁶

The order of the lower court is reversed and the case remanded for proceedings consistent with this opinion.

Reversed and remanded.

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.

1 . Although we have found no case where an appellate court of this jurisdiction has held an express warranty was made by a physician, it is generally held that an alleged express warranty cannot be enforced unless, (1) it was made before the operation was performed, and was relied upon by the patient in contracting for the service, or, (2) it was supported by a separate consideration. See Sard v. Hardy, 34 Md.App. 217, 367 A.2d 525, reversed 281 Md. 432, 379 A.2d 1014 (1976); annot. 43 A.L.R.3d 1221, Contract to Effect Specific Medical Result; see also annot. 27 A.L.R. 1250, Physicians and Surgeons— Warranty of Success.

2 . The court ultimately held that damages for the breach of contract, measured by the expense of rearing and educating the child born subsequent to the negligent sterilization, are not allowed due to public policy.

3 . In her complaint appellant does not allege that the infant was defective in any way. Thus we may properly infer that the baby is normal and healthy.

4 . In Speck we noted various purposes in limiting the size of a family: (1) eugenic (preventing birth of a defective child); (2) therapeutic (preventing harm to mother’s health or life); (3) socio-economic or contraceptive (economic reasons). 268 Pa.Super. at 348 n.4; 408 A.2d at 499 n.4. However, despite different labels, the elements of the cause of action are the same. But see n.4, supra, for situation where purpose of contraception may be relevant.

5 . In his concurring and dissenting opinion in Speck, Judge Spaeth made the following observation which is pertinent to the instant case:

I should leave undecided the outcome in a case in which a child that resulted from the defendant’s negligence had been unwanted because its birth presented a risk that in the end did not materialize. For example, it might be that a couple desired no more

children because they feared a risk to the mother’s health in childbirth, or, as here, a hereditary disease. If a child was because of the defendant’s negligence nevertheless born, but with no damage to the mother’s health and itself healthy, arguably the damages should not include the expenses of raising the child. Cf. Wilczyn-ski v. Goodman, 73 Ill.App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979).

268 Pa.Super. at 374 n.6, 408 A.2d at 513 n.6.

6 . In her complaint Mrs, Mason also alleges damages on behalf of her other two children, both minors, resulting from the birth of her third child. We do not address this claim, however, since the two minor children are not parties to this action.