Brunson v. Hospital of the University of Pennsylvania
| Decision Date | 21 May 1982 |
| Docket Number | 409 |
| Citation | 7 Phila. 639 |
| Parties | Dareen Brunson v. Hospital of the University of Pennsylvania |
| Court | Pennsylvania Commonwealth Court |
(1) The Supreme Court's decision in Speck II regarding the right of parent-plaintiffs to recover tort damages for mental distress and physical inconvenience incident to an unwanted child's birth does not extend to claims in special contract actions
(2) In an assumpsit action by a parent-plaintiff to recover damages for the birth of an unwanted, retarded child where a breach by defendant of a special contract to perform a successful sterilization was found, the court instructed the jury, that the only damages plaintiff was entitled to were the reasonable medical expenses and cost of raising the child
(3) The medical expenses and costs of rearing a child born subsequent to a failed sterilization procedure are pecuniary losses that are within the foreseeable and probable consequences of a breach of a special contract that guarantees prevention of future pregnancies
(4) A " wrongful birth" claim of a parent differs from a " wrongful life", claim of a child in that the former is limited to the parents' claim for the damages attributable to the cost of rearing the child, while the latter includes the child's claim for all damages including pain and suffering as well as pecuniary losses incident to having been born
(5) The court properly instructed the jury that it could not compensate plaintiff for the pain and suffering and inconvenience incident to the birth and rearing of her child where, although defendant could have anticipated that plaintiff would be inconvenienced and possibly suffer mental distress from a birth of an unwanted child, there was no evidence that the breach of the contract was wanton or wreckless and there was no evidence that the plaintiff suffered any bodily harm other than the pain and inconvenience of undergoing the tubal ligation which plaintiff agreed to undergo when she made the special contract with defendant
(6) The jury's award of no damages despite a finding in plaintiff's favor does not render the damage award inadequate as a matter of law and entitle plaintiff to a new trial
(7) A new trial on grounds of inadequacy of a jury's verdict should only be granted where it is evident that the amount of the award was influenced by prejudice or a clear misconception of the law or the evidence of the case
(8) It is within the province of the jury to determine whether the party claiming damages has met his burden of proof; where the award bears a reasonable relationship to the damages proven by the party claiming damages, the jury's award should be allowed to stand
(9) A plaintiff in a " wrongful birth" /" wrongful life", case is expected to present claims of damages to the fact finder relating to the cost of pregnancy and rearing the child through to his majority, with evidence describing family history; standard of living; geographic location parental aspirations for the child -- to the extent reasonably quantifiable -- actuarial ascertainment of costs of rearing including cost of food, shelter, schooling, medical care, and the costs of maintenance of a child; and other additional reasonably anticipated expenses
(10) An award of zero damages, in a case where the damages are not proved with reasonable certainty, is not so outrageous as to warrant a new trial on the issue of damages alone.
David N. Rosen, Esquire, for Plaintiff
Joseph H. Foster, Esquire, for Defendant
This is an appeal by Plaintiff from the Judgment on the Verdict entered on March 3, 1982, in favor of the Plaintiff, with an award of no damages.
On October 24, 1973, Defendant Hospital of the University of Pennsylvania performed a tubal ligation operation on Plaintiff Dareen Brunson. Plaintiff had previously given birth to three healthy children. Plaintiff gave birth to her first child in 1968, her second child in 1972, and her third child in 1973.
On March 16, 1975, Plaintiff at age twenty years, gave birth to her fourth child, Ayana, at the Thomas Jefferson University Hospital. At birth, Ayana was healthy, although premature. Several days after her birth, however, Ayana developed meningitis and subsequently, hydrocephalus. Plaintiff claims that Ayana is now severely retarded and requires special care.
On November 24, 1975, Plaintiff filed the instant action in trespass and assumpsit against the Defendant. Plaintiff did not plead lack of informed consent in her trespass action. On March 21, 1980, Plaintiff sought leave to amend her complaint to include allegations of lack of informed consent. Specifically, Plaintiff's proposed Amended Complaint alleged that Defendant had failed to inform Plaintiff of the risks of future pregnancy, and that had she been so advised, Plaintiff would not have undergone the tubal ligation.
On May 30, 1980, Court of Common Pleas Judge EDWARD ROSENWALD denied Plaintiff's Motion for Leave to Amend the Complaint under the holding of his opinion in Isard v. Atkins, 12 D. & C.2d 15 (1979). Judge ROSENWALD had prevented the Plaintiff in Isard from introducing the theory of informed consent at trial on the grounds that an amendment introducing a new cause of action such as informed consent into a complaint in trespass should not be permitted after the statute of limitations had run.
On June 23, 1980, Plaintiff filed an appeal to the Superior Court from Judge ROSENWALD'S Order of May 30, 1980. On October 23, 1980, the Superior Court in a per curiam order quashed Plaintiff's appeal, thereby preventing Plaintiff from introducing evidence of lack of informed consent at trial.
On October 19, 1981, jury trial of this case commenced before this Court. At trial, Plaintiff conceded that she could not prove that the tubal ligation operation itself was negligently performed. Since Plaintiff was precluded from raising the informed consent issue and Plaintiff presented no evidence as to Defendant's negligence in the performance of the operation, the only issue remaining in the case at the end of trial was whether Defendant's physicians had made a special contract with Plaintiff in which they explicitly guaranteed the success of the sterilization operation and permanent prevention of all future pregnancies.
This Court instructed the jury on the determination of liability and damages in a special contract action. After lengthy deliberation, the jury returned a verdict for the Plaintiff, but awarded no damages.
Plaintiff filed a Motion for New Trial, restricted to damages only. Plaintiff, in her brief and at oral argument, contended that the amount of damages awarded was inadequate as a matter of law. Upon consideration of Plaintiff's Motion for New Trial, Defendant's reply thereto, memoranda submitted by the parties, and after oral argument, this Court, by Order of February 16, 1982, denied Plaintiff's Motion for New Trial Limited to Damages only. This Court further found that Plaintiff was also not entitled to a completely new trial on the issue of liability, as well as damages.
On March 3, 1982, Defendant filed a Praecipe to Enter a Judgment in favor of Plaintiff and against Defendant, in the amount of zero damages, in accordance with the verdict of the jury and this Court's denial of Plaintiff's Motion for a New Trial. On March 9, 1982, Plaintiff filed the instant appeal from the Judgment on the Verdict in favor of Plaintiff and against Defendant assessing zero damages.
Plaintiff contends on appeal that the jury's award of no damages was inadequate as a matter of law. Plaintiff argues that, since the jury found in favor of her and against the Defendant with regard to Defendant's liability on the special contract issue, she was entitled to all natural and foreseeable damages arising from Defendant's breach of contract. Plaintiff claims that an award of no damages in the instant case was against the weight of the evidence, against the weight of the law and against the charge of this Court.
Plaintiff further contends that this Court's charge to the jury was in error. Specifically, Plaintiff argues that this Court erred in instructing the jury that Plaintiff's claim for medical expenses and costs incurred in rearing Ayana should be limited to the life expectancy of Plaintiff and further limited to the length of time that Ayana would be dependent upon Plaintiff, if the jury determined that the length of Ayana's dependency would be less than Plaintiff's life expectancy. Plaintiff also argues that this Court erred in instructing the jury that Plaintiff could not recover for the pain and suffering incident to Ayana's birth. Plaintiff finally claims she was prejudiced by the alleged misleading charge to the jury.
The instant case is apparently one of first impression in this jurisdiction. Unlike other recent cases involving claims for " wrongful life" /" wrongful birth," this case is solely a special contract action, not a tort action. Because of Plaintiff's failure to plead lack of informed consent within the statute of limitations period and Plaintiff's failure to produce evidence of Defendant's negligence in the performance of the tubal ligation operation, there was no medical malpractice issue in the case. Rather, the only issue in the case was whether Defendant's physicians had orally guaranteed that Plaintiff would be permanently incapable of having children in the future. [1]
As Judge CAVANAUGH, writing for the majority of the Superior Court in Mason v. Western Pennsylvania Hospital, 286 Pa.Super 354, 428 A.2d 1366 (1981), noted, there are apparently...
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