Jenkins v. Hospital of Medical College of Pennsylvania
| Decision Date | 08 December 1993 |
| Citation | 634 A.2d 1099,535 Pa. 252 |
| Parties | Gwendolyn JENKINS, Appellee, v. HOSPITAL OF the MEDICAL COLLEGE OF PENNSYLVANIA and Dr. Carol Grabowski and Dr. Dorothy M. Barbo, Appellants. |
| Court | Pennsylvania Supreme Court |
Mark Jurikson, Philadelphia, Calvin R. Koons, Sr. Deputy Atty. Gen., for appellee.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
This appeal raises the issue of the constitutionality of Section 8 of the Act of April 13, 1988, P.L. 336, No. 47, which provides for the retroactive application of 42 Pa.C.S.A. § 8305(a) to any case pending or on appeal on the effective date of the statute. The Superior Court held that the retroactive application of the statute was unconstitutional because the Legislature may not extinguish a cause of action which has accrued to a plaintiff. We affirm the order of the Superior Court.
On March 8, 1984, Appellee Gwendolyn Jenkins gave birth to a male child who suffers from Downs syndrome. She underwent a sterilization procedure immediately after the birth. She subsequently brought a civil action against the Hospital of the Medical College of Pennsylvania, Dr. Carol Grabowski, and Dr. Dorothy M. Barbo, to recover damages based on the alleged negligence of the medical providers during her pregnancy. The complaint asserted that the medical providers were negligent in failing to perform a diagnostic test for the presence of Downs syndrome within sufficient time for her to elect to terminate the pregnancy, and in failing to inform her that the child suffered from Downs syndrome before the sterilization procedure was performed.
In Count I of the complaint, Ms. Jenkins alleged that she sustained the following losses:
28. As a direct result of the injuries aforementioned and caused solely thereby, Plaintiff has suffered great physical and mental and emotional pain and will continue to suffer such pain and anguish for an indefinite time into the future, all to her great detriment and loss.
29. As a direct result of the aforementioned injuries, Plaintiff has suffered a complete sterilization, which has left her unable to bear any further child [sic], all to her great detriment and loss.
30. As a further reuslt [sic] of the aforesaid, Plaintiff has been unable in the past, and may be unable in the future, to attend to her usual duties, occupations and avocations and has suffered a loss of earnings and future earning capacity, all to her great detriment and loss, financial and otherwise.
31. As a direct result of Defendants failing to perform the aforementioned diagnostic testing which resulted in Plaintiff delivering a child suffering from Down's Syndrome, which is a permanent medical condition, Plaintiff has suffered severe economic loss and will continue to suffer tremendous economic costs in the raising of said child and in affording said child the appropriate medical treatment and care, as well as appropriate and necessary educational and other social services necessary for the child to have a life which is as normal as is possible under the circumstances.
32. As a direct result of the failure of Defendants to afford the appropriate diagnostic amniocentesis testing and availing Plaintiff of the opportunity to abort said pregnancy, Plaintiff has been unable to resume her prior employment opportunities and has suffered significant financial loss, all to her great detriment and loss, and will continue to do so for an indefinite time into the future in order to afford the appropriate treatment and care of Plaintiff's child, Cory Jenkins, who requires constant care and attention of Plaintiff, Gwendolyn Jenkins, and will need said care for an indefinite time into the future.
33. As a further result of the aforesaid, Plaintiff has been required and will be required in the future to expend and become liable for substantial sums of money for medicines, and medical treatment and care for herself and in particular, Plaintiff has incurred and is liable for the costs of the aforesaid sterilization procedures and hospitalization costs attending to the delivery of her child, Cory Jenkins, all of which would have been avoided if Plaintiff was timely made aware of the genetic abnormality of her child in time to abort said pregnancy.
(R. 10a-11a).
The averments of the first count were incorporated into Count II of the complaint which alleged that the medical providers had breached their contractual obligations by performing the sterilization procedure without obtaining her informed consent. She alleged that the medical providers had a contractual obligation to make all relevant medical information available to her prior to performing the procedure, and that she suffered monetary damages as a result of their failure to do so, "including the cost of the sterilization procedure and possible future costs of medical treatment and care which may be incurred in the future to reverse said sterilization." Preliminary objections were filed by the Appellants requesting that Count II be stricken as duplicative of Count I. The trial court sustained the motion to strike the second count by an order entered on January 21, 1987. No appeal from that order was taken.
Count III of the complaint was directed against the hospital alleging its negligence in failing to monitor the physicians, in failing to provide the proper medical treatment, and in failing to set appropriate guidelines for sterilization procedures. Ms. Jenkins sought damages for mental anguish, loss of earnings and loss of future earning capacity arising from her inability to attend to her usual occupation, and expenses related to raising the child. With respect to the child-related expenses, she alleged:
40. As a direct result of the injuries aforementioned and caused solely thereby, Plaintiff has suffered great physical and mental and emotional pain and will continue to suffer such pain and anguish for an indefinite time into the future, all to her great detriment and loss.
41. As a direct result of the aforementioned injuries, Plaintiff has suffered a complete sterilization, which has left her unable to bear any further children all to her great detriment and loss.
42. As a further result of the aforesaid, Plaintiff has been unable in the past, and may be unable in the future, to attend to her usual duties, occupations and avocations and has suffered a loss of earnings and future earning capacity, all to her great detriment and loss, financial and otherwise.
43. As a further result of the aforesaid, Plaintiff has been required in the past and will be required in the future to expend and become liable for substantial sums of money for medicines and medical attention both for herself and for her child, Cory Jenkins, in and about endeavoring to secure treatment for her injuries and illnesses to her son, Cory Jenkins, all to her great detriment and loss, financial and otherwise.
44. As a direct result of Defendants failing to perform the aforementioned diagnostic testing which resulted in Plaintiff delivering a child suffering from [D]own's Syndrome, which is a permanent medical condition, Plaintiff has suffered severe economic loss and will continue to suffer tremendous economic costs in the raising of said child and in affording said child the appropriate medical treatment and care, as well as appropriate and necessary educational and other social services necessary for the child to have a life which is an [sic] normal as is possible under the circumstances.
45. As a direct result of the failure of Defendants to afford the appropriate diagnostic amniocentesis testing and availing Plaintiff of the opportunity to abort said pregnancy, Plaintiff has been unable to resume her prior employment opportunities and has suffered significant financial loss, all to her great detriment and loss and will continue to do so for an indefinite time into the future in order to afford the appropriate treatment and care of Plaintiff's child, Cory Jenkins, who requires constant care and attention of Plaintiff, Gwendolyn Jenkins and will need said care for an indefinite time into the future.
(R. 13a-14a).
After the pleadings were closed, the Appellants moved for judgment on the pleadings with respect to paragraphs 31-33 and 43-45 of the complaint. The Appellants sought judgment on the pleadings on the basis that 42 Pa.C.S.A. § 8305(a) precluded the claim for wrongful birth set forth in those paragraphs. The trial court granted the motion and directed that the specified paragraphs be stricken from the complaint. The proceedings on the remaining allegations were stayed pending an appeal.
Ms. Jenkins appealed to the Superior Court, arguing that the retroactive application of 42 Pa.C.S.A. § 8305 violated the due process and equal protection guarantees of the state and federal constitutions and that the statute violated the separation of powers doctrine. After oral argument, the Superior Court entered an order stating that a panel of the court had determined that the case involved matters of sufficient importance to warrant consideration by the court en banc, namely, whether an order disposing of fewer than all causes of action raised in a single complaint is appealable. The Superior Court concluded that the trial court's order was a final order as the stricken portion of the complaint stated a separate and distinct cause of action for wrongful birth. The Superior Court reversed the trial court's order and remanded the case to the trial court for further proceedings, 401 Pa.Super. 604, 585 A.2d 1091. We granted the Appellants' Petition for Allowance of Appeal.
The Appellants assert that the Superior Court erred in holding that the trial court's order was a final and appealable order and that appellate review of the trial court's order should be deferred until there is a final adjudication as to...
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...treat an accrued tort cause of action as a "vested right" under the United States Constitution, see Jenkins v. Hospital of Med. College, 535 Pa. 252, 634 A.2d 1099, 1104-05 (1993), and are contrary to current federal constitutional precedent that finds no vested right in a tort cause of act......
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