Mason v. Western Pennsylvania Hospital

• Decision Date: 16 April 1981
• Parties: Jacqueline B. MASON, Appellant, v. WESTERN PENNSYLVANIA HOSPITAL, a Corporation, and Robert Blockstein, M. D.
• Court: Pennsylvania Superior Court

428 A.2d 1366

286 Pa.Super. 354

Jacqueline B. MASON, Appellant, v. WESTERN PENNSYLVANIA HOSPITAL, a Corporation, and Robert

Blockstein, M. D.

Superior Court of Pennsylvania.

April 16, 1981

Argued Dec. 3, 1980.

Byrd R. Brown, Pittsburgh, for appellant.

Nora Fischer, Pittsburgh, for Western Pennsylvania Hospital appellee.

Richard S. Dorfzaun, Pittsburgh, for Blockstein, appellee.

Before CERCONE, President Judge, and PRICE, SPAETH, HESTER CAVANAUGH, BROSKY, and HOFFMAN, JJ.

CAVANAUGH Judge:

This is an appeal by the plaintiff-mother (appellant) from an order of the court below sustaining defendants' (appellees) demurrer to plaintiff's complaint for recovery of damages 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. ---, 422 A.2d 505 (1980).

In Speck, a child was born following unsuccessful vasectomy and abortion attempts. The infant suffers from neurofibromatosis, 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 neurofibromatosis and the Stribling infant was born with dextrocardia, 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 Stribling, 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 reasons ^[4] 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 ...