Sernovitz v. Dershaw

57 A.3d 1254, 2012 Pa. Super. 248, 2012 Pa. Super. LEXIS 3487
CourtSuperior Court of Pennsylvania
DecidedNovember 14, 2012
StatusPublished
Cited by2 cases

This text of 57 A.3d 1254 (Sernovitz v. Dershaw) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sernovitz v. Dershaw, 57 A.3d 1254, 2012 Pa. Super. 248, 2012 Pa. Super. LEXIS 3487 (Pa. Ct. App. 2012).

Opinion

OPINION BY

DONOHUE, J.:

Rebecca Sernovitz (“Rebecca”) and Lawrence Sernovitz (“Lawrence”), individually and in their capacities as the parents and natural guardians of Samuel Sernovitz (“Samuel”) (collectively, “Appellants”), appeal from the order of the Court of Common Pleas, Montgomery County, granting the preliminary objection in the nature of a demurrer filed by Stuart Z. Dershaw, M.D., John Stack, M.D., Laura Borthwick-Scelzi, M.D., Margaret M. Fillinger, CRNP, Women’s Care of Montgomery County, Holy Redeemer Hospital and Medical Center, and Holy Redeemer Health System, Inc. (collectively, “Appel-lees”).1 Because we conclude that 42 Pa. C.S.A. § 8305, which prohibits actions for wrongful birth and wrongful life, is unconstitutional as the manner in which it was enacted violated Article III, Section 3 of the Pennsylvania Constitution, we reverse the trial court’s grant of preliminary objections, reinstate the amended complaint, and remand for further proceedings.

According to Appellants’ amended complaint, Rebecca sought care from Appel-lees after becoming pregnant in December 2007 or January 2008. Because both she and her husband, Lawrence, are of Ash-kenazi Jewish heritage, their child was at increased risk of being afflicted with certain genetic disorders.2 Thus, in February 2008, she underwent blood tests to determine, inter alia, if she was a carrier of certain gene mutations, at the recommendation of Dr. Stack.

[1256]*1256Appellants allege that the testing revealed that Rebecca is a carrier of the gene mutation that causes familial dysau-tonomia (“F.D.”) but Appellees did not inform Rebecca of the results. Rather, at a March 3, 2008 office visit, Dr. Dershaw told Rebecca all tests were negative, i.e., Rebecca was not a carrier of any of the gene mutations for which she was tested. At a subsequent appointment on May 8, 2008, Dr. Borthwick-Scelzi likewise did not indicate that Rebecca was a carrier of the gene mutation that causes F.D.

Samuel was born in September 2008. In December 2008, Appellants were told that he might be suffering from F.D. According to Appellants, this would only be possible if both parents were carriers of the gene mutation that causes F.D. Rebecca called Appellees, and learned for the first time that she is a carrier, and that she was misinformed about the February 2008 blood test results.

On August 19, 2010, Rebecca and Lawrence filed a complaint against Appellees alleging causes of action for wrongful birth on their own behalf and wrongful life on behalf of Samuel. Therein, they asserted that Appellees were professionally negligent in failing to inform Appellants that Rebecca was a carrier of the gene mutation that causes F.D. Had they known, Appellants state that Lawrence would have also been tested, revealing that he too was a carrier. This, in turn, would have prompted further testing to determine if Samuel would be born with F.D. Because they were not so informed, they were not given the opportunity to determine whether they should terminate the pregnancy. Appellants sought damages for expenses related to the birth and care of Samuel, emotional distress, pain and suffering, humiliation, mental anguish, anxiety, fear, and loss of enjoyment of life. They included claims of respondeat superi- or against Holy Redeemer Hospital and Holy Redeemer Health Care System, Inc., and corporate negligence against Women’s Care of Montgomery County, Holy Redeemer Hospital, and Holy Redeemer Health Care System, Inc. Appellants further asserted in their complaint that the statute prohibiting causes of action for wrongful birth and wrongful life (42 Pa. C.S.A. § 8305)3 was unconstitutional, as the manner by which it was enacted violated Article III, Sections 1, 3, 4, and 6 of the Pennsylvania Constitution. Appellants appended to their complaint Certificates of Merit as to each of the named defendants. Because Appellants alleged that Section 8305 is unconstitutional, they further in-[1257]*1257eluded proof that they served a copy of the complaint upon the Office of the Attorney General of Pennsylvania as required by Pa.R.A.P. 521(a).4 Appellants filed an amended complaint on October 6, 2010, including a paragraph asserting that if Appellants had been appropriately informed, Rebecca would have undergone an abortion “rather than bringing a child into this world who would be destined to suffer from [F.D.] and to endure a lifetime of extreme and debilitating suffering and, ultimately, a premature death.” Amended Complaint, 10/6/10, at ¶ 41.5

Appellees filed preliminary objections to the complaint on September 20, 2010 and to the amended complaint on October 22, 2010, seeking dismissal of the amended complaint with prejudice for legal insufficiency, as Appellants’ claims for wrongful birth and wrongful life are barred by Section 8805. Appellees asserted that Appellants failed to carry their burden of persuasion that the statute is unconstitutional. Thereafter, the parties filed a series of briefs in support of their respective positions. On December 20, 2011, the trial court granted Appellees preliminary objections, rejecting Appellants’ constitutional challenge and dismissing their amended complaint. This timely appeal followed.

In the court below and on appeal, Appellants acknowledge that Pennsylvania law, specifically, the wrongful birth and wrongful life statute, currently precludes them from bringing the causes of action contained in their amended complaint. See Appellants’ Brief at 14. They assert, however, that Senate Bill 646 of 1987 session of the Pennsylvania Legislature (“SB 646”), signed into law as Act 47 of 1988, by which Section 8305 was enacted, violates the Pennsylvania Constitution in several respects, and thus Section 8805 must be stricken. See id. at 4, 15. Appellants’ specific constitutional challenges are as follows:

1. Was Act 47, which as enacted has as its primary purpose addressing post-conviction relief and other issues of criminal law, but which was amended to include the “wrongful birth statute’ (42 Pa.C.S. § 8305), passed in violation of the ‘single subject’ requirement of Article III, Section 3 of the Pennsylvania Constitution?
2. Should Act 47, the primary purposes of which as enacted was to address post-conviction relief and other issues of criminal law[,] be severed so that provisions that do not fall within the primary legislative purpose, particularly § 8305, be declared unconstitutional?
3. Was Act 47, which originated as a bill concerning substitute bail commissioners, amended so as to change its original purpose in violation of the dictates of Article III, Section 1 of the Pennsylvania Constitution?
4. Was Act 47, which was only considered in its final form on one day in each House, properly considered on three different days in each House of the General Assembly as required by Article III, Section 4 of the Pennsylvania Constitution?

Id. at 4.6

[1258]*1258As this appeal results from the grant of Appellees’ preliminary objection in the nature of a demurrer, our standard of review requires that we determine whether the trial court committed an error of law. Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super.2011).

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Cite This Page — Counsel Stack

Bluebook (online)
57 A.3d 1254, 2012 Pa. Super. 248, 2012 Pa. Super. LEXIS 3487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sernovitz-v-dershaw-pasuperct-2012.