Mason v. Western Pennsylvania Hosp.

• Decision Date: 31 December 1982
• Citation: 453 A.2d 974,499 Pa. 484
• Parties: Jacqueline B. MASON, an individual, Appellant, Appellee, v. WESTERN PENNSYLVANIA HOSPITAL, a Corporation; and Robert Blockstein, M.D., Appellants, Appellees.
• Court: Pennsylvania Supreme Court

453 A.2d 974

499 Pa. 484

Jacqueline B. MASON, an individual, Appellant, Appellee, v. WESTERN PENNSYLVANIA HOSPITAL, a Corporation; and Robert

Blockstein, M.D., Appellants, Appellees.

Supreme Court of Pennsylvania.

December 31, 1982.

Richard S. Dorfzaun, Larry A. Silverman, Dickie McCamey & Chilcote, Pittsburgh, for Robert Blockstein M.D.

Byrd R. Brown, Doris A. Smith, Brown, Smith & Schwartz Pittsburgh, for Jacqueline B. Mason.

Donald W. Bebenek, Nora Barry Fischer, Pittsburgh, for Western Pennsylvania Hosp.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY McDERMOTT and HUTCHINSON, JJ.

OPINION

ROBERTS, Justice.

This is an action in assumpsit and trespass to recover damages in connection with the allegedly improper performance of a sterilization operation. The Court of Common Pleas of Allegheny County dismissed Mrs. Jacqueline Mason's complaint and sustained preliminary objections in the nature of a demurrer filed by defendants Dr. Robert Blockstein and Western Pennsylvania Hospital. On appeal, the Superior Court sitting en banc reinstated the complaint. 286 Pa.Super. 354, 428 A.2d 1366 (1981) (Price, J., dissenting). However, the members of the Superior Court were divided as to the nature of the damages which should be recoverable if proven at trial. Allowance of appeal was granted to all parties, and this appeal followed.

The complaint alleges that in June, 1974, Mrs. Mason was admitted to defendant West Pennsylvania Hospital where she underwent a bilateral tubal ligation performed by defendant Dr. Robert Blockstein. According to the complaint, the defendants negligently performed the sterilization operation and breached express and implied warranties that the operation "would prevent [Mrs. Mason] from incurring future pregnancies." Mrs. Mason subsequently became pregnant and, on January 2, 1977, gave birth by caesarean section. The child is not alleged to be in other than good health.

I. The Superior Court properly determined that the complaint alleges facts which, if proven, would entitle the plaintiff to relief under basic principles of the law of contract and tort. The alleged breach of warranties and negligent performance of the sterilization operation are asserted to be a direct cause of Mrs. Mason's pregnancy. It follows, therefore, that the costs associated with the pregnancy and delivery would be within both the contemplation of the parties to an express or implied warranty and the range of reasonably foreseeable consequences of the negligent performance of the surgical procedure. See Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981). Thus, if the plaintiff sustains her burden of proof, she is entitled to recover all medical expenses and lost wages related to pre-natal care, delivery, and post-natal care, as well as compensation for pain and suffering incurred during the pre-natal through post-natal periods.

II. In addition to these costs associated with pregnancy and childbirth, the complaint seeks to recover alleged damages for emotional distress and the expenses of raising the child until the "age of maturity." We agree with the majority of the Superior Court and the majority of jurisdictions which have considered the issue that the financial and emotional costs of raising a healthy child are not compensable. ^[1] In light of this Commonwealth's public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child. As was stated twenty-five years ago by the Court of Common Pleas of Lycoming County,

"Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff's statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy."

Shaheen v. Knight, 11 D. & C.2d 41, 46 (1957). ^[2]

Order of the Superior Court vacated, and record remanded to the Court of Common Pleas of Allegheny County for proceedings consistent with this opinion. ^[*]

O'BRIEN, C.J., files a concurring and dissenting opinion in which FLAHERTY, J., joins.

NIX, J., files a concurring and dissenting opinion, in which McDERMOTT, J., joins.

LARSEN, J., files a concurring and dissenting opinion.

O'BRIEN Chief Justice, concurring and dissenting.

I agree with the opinion of Mr. Justice Roberts that plaintiff has sufficiently set forth causes of action in trespass and assumpsit. As stated in Cockrum v. Baumgartner, 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968 (1981), the instant action is "not an aspersion upon the value of the child's life. It is instead a recognition of the importance of the parent's fundamental right to control their [sic] reproductivity." Id. 99 Ill.App.3d at 273, 54 Ill.Dec. at 753, 425 N.E.2d at 970. Accord Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).

However, I disagree that the benefits of joy, companionship and affection which a healthy, unplanned child may provide outweigh, as a matter of law, the cost of raising such a child. I see no justifiable reason to differentiate between the present case and our decision in Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981), allowing the plaintiffs to seek damages for the cost of raising their genetically defective child. Any other result is inconsistent. It is not the relative health of the child, but is instead the alleged negligence of the physician, that gives rise to all damages that are foreseeable. "The law of liability should not turn on ... fortuitous considerations." Howard v. Lecher, 42 N.Y.2d 109, 113, 397 N.Y.S.2d 363, 365, 366 N.E.2d 64, 66 (1977).

What of a mildly defective child? The child in Ochs v. Borrelli, supra, was born with a mild orthopedic defect following a negligently performed tubal ligation. The child's orthopedic problems were described as forefoot adductus (which was corrected by casts and exercise) and flat foot, a problem that was not corrected. A jury calculated damages for direct medical expenses incident to the pregnancy and birth, pain and suffering incident to the failed sterilization, medical expenses necessitated by the orthopedic disability and the cost of raising the child to her majority, reduced by the value of the benefits conferred on the parents by having and raising the child. Utilizing the position of Mr. Justice Roberts, who would not permit Mrs. Mason to seek child rearing expenses simply because she had the great fortune of bearing a healthy child following the allegedly negligent tubal ligation, where would a child such as borne by Mrs. Ochs fit into the Pennsylvania scheme? And what of a child whose condition, although severe, was correctable, but at some years in the future? These are all factors that would, and should, be weighed and considered by the trier of fact.

I agree with Superior Court Judges Spaeth, Cavanaugh and Brosky ^[1] who concluded that Mrs. Mason should be permitted to seek damages for the cost of rearing her child, offset by the value of the child's aid, comfort and society.

The benefit rule provides,

"Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable."

Restatement (Second) of Torts, § 920 (1965). See also D. Dobbs, Remedies § 3.6 (1973); C. McCormick, Damages § 40 (1935). Thus, "[w]hen a defendant's tortious actions benefit as well as injure plaintiff, a computation of damages [requires] that the award for the injury be reduced by the value of the benefit." Comment, Liability for Failure of Birth Control Methods, 76 Colum.L.Rev. 1187, 1197-98 (1976).

Mr. Justice Roberts has adopted defendants' assertion that this Commonwealth's public policy precludes plaintiff's right to seek recovery of child-rearing expenses. This argument has been made in virtually every jurisdiction in which the courts have been confronted with negligent sterilization claims. An intermediate appellate court in Illinois issued the most succinct and sensitive response. ^[2]

"While we agree that most parents hold the sentiment that the birth of a healthy albeit unplanned child is always a benefit, we are not inclined to raise this sentiment to the level of public policy. The uniqueness of life is in no way denigrated by a couple's choice not to have a child. Neither the individual nor society as a whole is harmed by the exercise of this choice. Recognizing this, the right to limit procreation through contraception and, to a limited extent abortion, has been held to come within a constitutionally protected 'zone of privacy.' (Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147.) Regardless of motivation, a couple has the right to determine whether they will have a child. That right is legally protectible and need not be justified or explained.... (See Comment, Wrongful Life: Birth Control Spawns a Tort, 13 John Marshall L.Rev. 401, 420 (1980).) We cannot endorse a view that effectively nullifies this right by providing that its violation results in no injury."

Cockrum v. Baumgartner, supra 99 Ill.App.3d at 273, 54 Ill.Dec. at 753, 425 N.E.2d at 970 (1981).

In his dissenting opinion in Wilbur v. Kerr, 275 Ark. 239 628 S.W.2d 568 (1982), Justice Dudley clearly...