Mason v. Western Pennsylvania Hospital

CERCONE, Before PRICE, President Judge, SPAETH, HESTER, BROSKY, CAVANAUGH, and HOFF- MAN, JJ.

CAVANAUGH, Judge: appeal This is an plaintiff-mother (appellant) from an order of the court below defendants’ sustaining (appel- dam-, lees) demurrer to plaintiff’s complaint recovery for of ages for A wrongful appellant’s baby birth child. was born to on the fact appellant January despite that a ligation tubal had been performed on the on June appellant 11, 1974 defendant Dr. Blockstein by hospital. at defendant Appellant’s complaint was based on two of action: (1) causes that defendants breached their express implied and warran- ties that the sterilization procedure which under- appellant went would prevent (2) future and pregnancy, defend- ants were negligent in performing ligation the tubal upon appellant. Appellant sought damages anguish, for mental pain and suffering and inconvenience resulting from the section; and pregnancy subsequent caesarian medical costs child; and for expenses delivery expenses and for support and maintenance of the child.

The lower court held that it is against public policy this state recognize claims for trespass assumpsit or birth of However, a child. subsequent to the lower court’s decision, this court has contrary held v. Speck Finegold, Pa.Super. A.2d 496 allocatur granted 18, 1979, deQuevedo,- December Stribling 432 A.2d 239 Pa.Super.-, vasecto- unsuccessful following a child was born

In Speck, from neurofi- The infant suffers attempts. and abortion my The of the nervous system. disease bromatosis, a crippling to prevent measures child and took not want a did parents fear that deep-rooted of their and birth because conception disease. hereditary born with this a child would be such suffer from sisters also two father and the child’s child’s neurofibromatosis. for of the child suit on behalf brought

Mr. and Mrs. Speck ex- pecuniary own right life” in their “wrongful care and bear for the borne and would had penses they to recover for seeking also infant and treatment suf- expenses emotional, injuries mental and physical of the birth of their as a result fered them as by for wrongful claim we the infant’s Although child. denied claim, birth, stating: parents’ we allowed the the existence allege dispute pleadings Here there is no to them- defendant-physicians from the duty flowing of a Fran- in the birth of resulted selves, the of which breach misrepresentations alleged negligence cine. The Dr. by breach of contract alleged both doctors and Fran- Unlike adequately pleaded. has also been Finegold life,” plaintiff-parents’ “wrongful cine’s claim based on language tort in traditional allege causes of action treat and properly duty but for defendants’ breach required have not been would they advise plaintiff-parents allegations In these alleged. undergo expenditures them owed to duty set forth a plaintiff-parents inju- resulting with the doctors by doctors and breached the plaintiffs. ries to cause have a

Thus, cognizable that parents established Speck would bear have borne and action for damages they of following negligently of a child born the care and treatment procedures. sterilization performed must determine before us we Therefore, in the case sufficiently facts whether, true all relevant as accepting deducible fairly all inferences in the pleaded complaint cause of forth a sets therefrom, complaint the plaintiff’s 358 Church, Bear v. Reformed Mennonite See

action. Pa. 462 Pike County Hotels 330, v. Kief- (1975); 341 A.2d 105 Corp. er, 262 Pa.Super. 126, (1978). First, 396 A.2d 677 we address claim appellant’s negligence in the performance tubal ligation. Because the a appellant alleges duty on part appellees, duty appellees, the breach by breach caused the proximately suffered by injured a parties, cognizable cause action has been al- leged. (Second) Restatement of Torts We 281. therefore § overrule the of the demurrer the court as granting by below negligence alleged appellees.

The lower court demurrer granted also a as to appellant’s claim of her warranty by breach of In appellees. complaint, Mrs. alleges Pennsyl- Mason both Western 11, vania Hospital and Dr. Blockstein that on or about June 1974, a contract arose war- promised, defendant “whereby ranted agreed upon a bilateral perform ligation tubal plaintiff and defendant warranted that tubal said bilateral ligation future prevent would pregnancy.” contract,

In absence of a a is special physician cure, neither a a warrantor of nor a of the result guarantor Hand, v. 378, Collins of his treatment. 246 398 Pa. A.2d Yohe, v. Smith Carl (1968); (1963); Pa. A.2d 167 Matzko, v. Pa. 249 A.2d 808 Super. physician expected guaranty good result from course of or administered. Ragan treatment recommended Steen, v. also (1974), see 331 A.2d 724 Pa.Super. McWha, v. McCandless (1853) 22 Pa. (no implied “war ranty however, of cure” in A Pennsylvania). physician, bind himself an specific contract obtain results express by treatment or an Consideration for this operation. guar Am.Jur.2d, anty must be shown. Physician, Surgeons Healers, and Other 149 at 279.1 A where- special contract § Although appellate have no an this we found case where court of jurisdiction express warranty by physician, has held an was made generally express warranty alleged it is held an cannot unless, (1) operation performed, service, or, enforced it was made before was upon by patient contracting and was relied for the (2) Hardy, supported separate it was Sard consideration. See was a result held particular a warranted by physician Knight, D. & 11 Pa. C.2d exist in the case of Shaheen his had alleged physician In that Shaheen patient him, in breach resulted breached a to sterilize contract rejected The court the physi- the birth of his fifth child. in that argument holding cure” “implied warranty cian’s which the suing special contract patient was under permanent- make and “immediately him physician agreed results The court sterile thereof.”2 ly guaranteed and stated: liberty

A his . . . are at contract patient doctor and attained, be not particular for a result. If that result The cause of action for breach contract. patient has a even malpractice, separate cause action is from entirely two out same The though both arise transaction. theory, proof are as to causes action dissimilar damages recoverable. 44. in her com-

11 Pa. D. Because Mrs. Mason & C.2d alleges by considera- plaint express warranty, supported an tion, sterility, that would result cause operation been set forth. sufficiently action for of contract has breach Therefore, defendant’s granting the lower court erred express warranty. demurrer as to this claim of an that is from Appellees argue distinguishable this case is Speck Stribling to Mrs. Mason baby that born normal and from neuro- healthy.3 Speck infant suffers fibromatosis and the infant born with dextro- Stribling was cardia, a in which one’s is farther to the condition heart Md.App. 217, A.2d 281 Md. 379 A.2d 1014 reversed (1976); Specific annot. 43 A.L.R.3d Contract to Effect Medical Result; 1250, Physicians see Surgeons— also annot. A.L.R.

Warranty of Success. contract, ultimately 2. The court held the breach of expense educating born measured sterilization, subsequent negligent not allowed due to are public policy. complaint appellant allege In her was does infant baby any way. may properly infer that defective in Thus we healthy. normal and right than is However, normal. our Speck decisions in and Stribling provide no such basis for these distinguishing cases.

After carefully reviewing our in and Speck decisions Stri- bling, we find of negligence that the the and physician not the physical condition of the infant is at the crux of the As matter. we stated in Speck: It is not contended that by plaintiffs defendant-physician’s treatment of Mr. in the Speck procedure sterilization caused the in abnormalities their infant. But that only for, had plaintiffs been treated properly and cared their child would have been conceived or born or if had they been sufficiently advised of the of possibility failed sterili- procedures zation have could the they preg- terminated within a nancy prescribed period time alternative methods of relief. Thus, A.2d at 507. the cause action we in recognized

our holding Speck in is not on based the fact of the infant’s ill health but on the breach of defendant-physician’s duty and resulting the injuries plaintiffs. the

As we stated in Speck, question determining in wheth- er a cause of action exists is not worth and sanctity life, but whether doctors were in their negligent surgical at attempts Super, sterilization. Pa. 408 A.2d at 503. in this case for decided socio-economic reasons4 bear no To more children.5 achieve this end Mrs. Speck limiting purposes family: 4. In we noted in of a various size (1) eugenic (preventing child); (2) therapeutic birth a defective (preventing life); (3) harm mother’s health or socio-economic or contraceptive (economic n.4; reasons). Pa.Super. at 348 However, labels, despite A.2d at 499 n.4. different the elements of n.4, supra, the cause of action are the same. But see for situation purpose contraception may where be relevant. concurring opinion Speck, Judge dissenting Spaeth In his and following pertinent made the observation which is instant case: I should leave undecided the outcome in a case which a child negligence that resulted from the defendant’s had been unwanted presented because its birth a risk end did not material- example, might couple For no ize. it be that a desired more following alleges, ligation. a tubal She underwent Mason negligently was child, operation of her the birth she has Thus thereby. injured that she was and performed of action. cause cognizable set forth sufficiently Speck In damages. We now turn to the issue to recover parents’ right Stribling recognized this court medical the costs of the child with claimed together to the child’s condition pertaining suffering mental, pain medical, physical emotional and this, question In view caused operations. of a normal following the birth before us is whether exists. these to recover right a normal for the birth of jurisdictions deny recovery Some See, v. Medical e. Rieck g., grounds. child on public policy (1974). 242 514, 219 N.W.2d Company, Protective 64 Wis.2d supra, it was stated Company, In Rieck v. Medical Protective a cause of action set forth complaint that hold that for fraudu- way “would damages open for recoverable or that has no sensible lent claims and would enter a field 244. 519, 219 N.W.2d at 64 Wis.2d at just stopping point.” Hospital, Dumer v. Michael’s 69 St. case, A later Wisconsin 766, damages Wis.2d 233 N.W.2d 372 allowed a following negligently of a child born parents deformed court, however, damages limited performed vasectomy. excluding of the child to those to deformities attributable child. The involved in a normal expenses rearing otherwise court stated:

Rieck must be at hand be- from the case distinguished to recover the entire sought cause the there parents normal, unwant- a but claimed expense raising sue parents only ed child its Here during dependency. defects. congenital for occasioned expense they a risk the mother’s health children because feared childbirth, or, here, hereditary If child was because disease. born, negligence dam- but with no of the defendant’s nevertheless damages age healthy, arguably the health and itself mother’s Wilczyn- raising expenses should not the child. Cf. include 216, Goodman, Ill.App.3d 479 391 N.E.2d ski v. 73 29 Ill.Dec. n.6, Pa.Super. A.2d at 513 n.6. at 374 233 N.W.2d at 376. See also Jacobs v. 69 Wis.2d Theimer, (Tex. 1975) where the court allowed S.W.2d for recovery reasonably costs related to child’s physical defects expenses but excluded to be incurred in rearing the child.

In Speck light of distinction similar that made Dinner court Speck possible. is not In this court did not limit the recoverable to those related to the child’s illness but also allowed for expenses child that have been were she would incurred normal and healthy. Thus it would be inconsistent to hold that parents of a all diseased recover expenses deformed or child arising from the conduct while not permitting tortious any of a normal recovery the child in given both cases is As noted this Speck unwanted. earlier court stated that is life, the issue not the worth sanctity but the of the negligence and that a physicians, recovery of money against public would not be at policy. Pa.Super. 355, 408 A.2d at 503. “Once the has plaintiff carried [the burden of it axiomatic proving negligence], is tort-feasor for all damages liable and in ordinarily the natural course have from the things resulted commis- sion tort.” 408 A.2d at Pa.Super. Therefore, Speck, because our we disposition find no basis for the distinguishing but life” from “wrongful healthy the situations in Speck Stribling in terms of entitlement to damages.

However, determining in the extent damages recovera- ble we are the faced with are question damages whether rule,” be reduced by application the of the “benefit Restate- ment of (Second), Torts 920. The benefit rule provides: §

When the defendant’s tortious conduct has caused harm to plaintiff to his or and in so property doing has conferred a benefit to the interest of the special plaintiff harmed, that was the value of the benefit conferred is considered in to the mitigation of extent damages, this is equitable. aid, society during comfort and of a child’s

Thus the value offsetting life is to considered expectancy the parents’ v. See Sherlock child. rearing unplanned the cost of Clinic, (Minn.1977). 260 N.W.2d 169 Stillwater 920 at Cercone discusses Judge President Although § decide specifically he does not Speck opinion, in the length it to the necessary to be nor was applied, whether the rule is Nevertheless, we hold Speck in decide the issue. holding will damages prevent in limiting the benefit rule being financial burden windfall and an undue parents in Moreover, court noted on the as this placed physician. Speck, recovery by parents courts which have allowed negligence, damages physician’s caused proximately child, have ordinarily the costs of including rearing See, e. v. g., Sherlock Stillwater applied the benefit rule. Clinic, v. Hospital, Sup. supra, Anonymous Conn. (1976) (both involving negligently performed 366 A.2d 204 Scarf, v. 240, 187 N.W.2d Troppi sterilization); Mich.App. for oral contra- (1971) misfilled (pharmacist prescription ceptive). Superior

In sterilization case Connecticut negligent stated: Court case present

The safer similar to the course situations com- appear allegations would to be to allow argue to stand and to the defendants plaint permit satisfaction, compan- mitigation joy, of a receive ionship, which normal Al- child and which make economic loss worthwhile. in that area ascertainment of though specific difficult, their consideration prevent that should the trier of fact. supra, agree. A.2d at 206. We

Anonymous Hospital, Thus, an amount damages “by reduce the jury may or unheal- child—healthy the benefit that a representing Speck, omitted) (footnote thy—would bring parents” J., supra, A.2d at 513 concur- (Spaeth, Pa.Super. recoverable, then, in a ring damages dissenting). case be reduced due to “wrongful may but life” healthy application of the It benefit rule. is also conceivable that a expenditure rearing or mentally defective physically child may aid, not be offset by the child’s comfort and society expenses relating extent that to a normal and may However, be offset such thereby. any determination toas the amount recoverable is within the province of the In of jury. terms entitlement to damages, above, as set forth no distinction principled can made between the normal unwanted child and the or physically mentally impaired unwanted child.

Thus Mrs. Mason’s claims for due to damages pecuniary expenses in prenatal postnatal care, well expenses as child, of relating as offset rearing are by § Likewise, allowable. from Mrs. Mason’s resulting loss of earnings, physical pain and emotional suffering and distress incident are if negligent recoverable surgery proven. however, As Speck we held in and Stribling, dam- ages from arising emotional and mental distress incident to the birth of the child are not recoverable. our of Although discussion such damages specifically ad- dressed the a of problem determining legal realm for the accountability pain and suffering parents mentally children, or physically deficient our conclusion is nonetheless in the case of a applicable normal child. In disallowing Specks this court stated:

... our position is that all suffer parents degree some stress, especially if a child is a disabling bom with condi- However, tion. not all of these are children “unwanted” term, sense any anguish emotional they normal, suffer be a uncomprehensible price one being Therefore, pays plaintiffs’ to allow parent. claim for mental and emotional to give stress would be them societal advantage not conceivable in cases other of parenthood. Pa.Super. at 408 A.2d In view this

reasoning, normal, parents of should healthy child be given a societal over advantage other of such

365 for must claim mental distress children. Mrs. Mason’s denied.6 the case is reversed and of the lower court

The order opinion. this for consistent with proceedings remanded remanded. Reversed and

BROSKY, J., concurring opinion. files a SPAETH, J., dissenting opinion. files concurring a HESTER, J., opinion, files concurring dissenting a HOFFMAN, J., CERCONE, Judge, and President join.

PRICE, J., files a dissenting opinion.

BROSKY, Judge, concurring: but believe majority strongly view of

I share the is to discernable susceptible of the Benefit Rule application I in its fact determination.1 guidelines aiding trier of wrong- of a cause of action believe that our recognition requires recognize child us to ful birth a “normal” do claim.2 I accompany existence of that the tort are too hold with the that these rationale Bauer, I v. speculative.3 agree the court Custodio with 463, 27 884 A.L.R.3d Cal.App.2d Cal.Rptr. mean does not necessarily that the birth of an plaintiffs injury compensable have not suffered damages. with begin to me our must appears analysis

It that law well established of tort that: principle Mrs, complaint alleges damages her on behalf of 6. In Mason also her children, minors, resulting third from the birth of her two both other claim, however, two minor do not since the child. We address this parties are not to this action. children 1. Restatement of Torts 920. § Co., Wis.2d

2. Rieck v. Protective Contra: Medical (1974). N.W.2d view, see 13 Val.L.R. 129 For discussion this is fundamental to our common law system one [i]t seek redress for every substantial best wrong. statement is rule wrongdoer responsible for the natural and proximate consequence of his miscon- duct.

Niederman 401, 403, Brodsky, 436 Pa. 261 A.2d (1970). Thus, under tort ordinary damages must principles, be awarded with the intent right a wrong.

Damages should generally be awarded within bounded areas, for it is true that an unlimited scope of damages claims, would bring being speculative into which our society could not by afford. This was best articulated public policy v. Justice in Palsgraf Long Andrews his landmark dissent in R., R. Island 339, 248 N.Y. 162 N.E. (1928), 99 wherein he the stated our court’s policy behind decision award only are damages which related to an proximately injury: that, What we by mean word is because “proximate” convenience, of of of a of public policy, rough sense justice, the law declines to trace of arbitrarily a series events beyond certain This is not It is point. logic. practical politics. 352,

Id. at 162 N.E. at 103. One rationale holds damages in wrongful birth actions, are though they proximately caused by defend- acts, ant’s must be to the damages limited related to directly of cost pregnancy damages because from resulting rear- ing the However, child are too speculative. clearly case no speculative instant are more than those found in death cases. wrongful Burd, v. in our Sinn

Notably, Supreme Court’s opinion 486 146, Pa. 404 A.2d 672 damages were awarded for and, the wrongful death of a child struck by an automobile also, for the mental trauma I suffered bystander. cannot see how damages sought in the instant case are more speculative than those brought generally wrongful cases, death sought by bereaved spouse claiming loss affection, comfort, love and companionship, society, relations, sexual or other in the intangible damages broad

367 and Ele Measure “conjugal rights.” generally: term See Consortium, for Loss Damages ments in Wife’s Action Airlines, Dutch Royal v. KLM 805; DeMarines 74 A.L.R.3d Blanco, 457 Pa. (D.C.Pa.1977); Hopkins v. 1047 433 F.Supp. 40 v. 247 Foley, Gates 90, So.2d (1974); A.2d 139 320 Naiditch, 881, 406, Dini v. 170 N.E.2d Ill.2d (Fla. 1971); “Basing accepted It is well that: (1960). A.L.R.2d 1184 upon inability tort denial of in a action recovery (footnote criticized” omit damages. determine . . widely [is] Co. v. Story Parchment ted) 480 at 54 Tulane L.R. 51 S.Ct. Paper Company, Paterson Parchment U.S. Holmes, v. 272, 405 (1931); Pugh 486 Pa. 75 L.Ed. A.2d yard- “no thaf there in fact

It is also well established consortium; is a value loss of it stick for determining DeMarines the trier fact.” matter to be resolved 1057; Airlines, v. United Aretz KLM Dutch Royal supra States, (S.D.Ga.1978). F. Supp. birth ac- attempted wrongful held

Some courts have life wrongful concep- analogues—wrongful tions and its negligent action because the tion—that no cause of exists of was the actual cause fact action of the defendant of was. intimacy parents but rather pregnancy Thus, or was action child derivative actions parent any by act. This allegedly negligent removed from entirely the United States Su- theory ignore not only appears Connecticut, v. in Griswold 381 U.S. preme holdings Court’s 479, 1678, 510 and its but progeny 14 L.Ed.2d S.Ct. interpretation causa- subscribed to an too narrow entirely (1980). Cases, Journal Law 431 Family tion. See in wrongful I assessment of permit would I guidelines birth cases to the limitations pursuant in this propose plaintiff opinion. for the However, those must be damages alleged by plaintiff the extent of offset or a determination mitigated by from the existence parent parents benefit or receive Garrison, v. their Coleman child.4 unplanned Del.Super., 281 616, A.2d A.L.R.3d 28 In this courts have regard, adopted Benefit Rule in wrongful birth actions. Green Sudakin, v. 545, 81 Mich.App. Sher- 411 (1978); N.W.2d Clinic, lock v. Stillwater Minn., 260 N.W.2d (1977); Anonymous v. Hospital, 126, Conn.Sup. 366 A.2d 204 Scarf, Troppi (1976); 31 Mich.App. 187 N.W.2d 511 (1971); Coleman, supra.

The Benefit Rule states: When the defendant’s tortious conduct has caused harm to the plaintiff or to his and in so property has doing conferred upon the plaintiff special benefit inter- est which harmed, was the value of the benefit conferred is considered in mitigation where damages, this is equitable. Torts,

Restatement of cf. Tort Liability Mitiga- § Dobbs, tion of Damages, D. 3.7, McCormick, Remedies C. § Damages Restatement of Torts § § It has been argued that the Benefit Rule presents similar- inexact ly aid, factors as the “child’s comfort and at society,” 1370, which receive in the rearing of a normal child. assert, I however, these benefits are ascertainable quantifiable. While its nature, very cannot certain, be absolutely they may be obtained with reasonable It certainty. desire to my map out the matters which need to be considered jury securing reasonable certainty.

Clearly, the Benefit Rule requires a balancing of the added expense to a family resulting from the presence of an “aid, child unplanned with the comfort and society” that brings to a “Wrongful Life” The Right Cf. 54 family. Born, Not to Be Tulane L.R. 498. While it is clearly possible, though unlikely, the benefit accruing to par- unplanned 4. The throughout term opinion. child shall be used this wrongful Children bom to involved in birth actions are not they parent unwanted the sense that are unloved. A who finds a upon may child loving prove thrust equal him nevertheless be and raising Anderson, the task of a child. Jackson v. 230 So.2d 503 (Fla.App.1970). all mitigate may child an unplanned ents of matter of as a be said cannot the plaintiff, claimed by “[i]t greater benefit confers a always law that a Coleman, supra, and support.” of his birth the expense than at 618. 281 A.2d from criticism strong without is not

The Benefit Rule shown by if reasonably damages, reason that those who of the Un- In, The Case mitigated. need not be plaintiff, Life, 31 U.Miami L.R. Wrongful Blessing: wanted Benefit application fault with the Joseph Kaski finds and parent- pregnancy of the burdens of balancing Rule as a to producing related against hood benefits manner: following in the in Troppi, supra, child found of preg- burdens Troppi, the benefits and According they related that so integrally are nancy parenthood in applying each other against should be balanced court the benefit rule. The same interest limitation to manner in this benefit rule believed that applying a fair assessment calculated to achieve would be best the particular to the circumstances damages according being of it regarded circumstances and the plaintiff, re- economic plaintiff’s were the greatest moment Mich. size, status. sources, and marital age, family [31 254-255, 187 N.W. at App. 518] an initial al- reasoning possesses the court’s Although it is flawed. lure, fatally reveals that close examination intan- confer certain the birth of the child Certainly, but these are upon parent, emotional benefits gible possibly and quite did not ask for parent benefits an analogized The defendant can be cannot afford. dam- he intermeddler, argues and when officious unsolic- be offset by him should ages against assessed strik- quite the resemblance ited benefits of parenthood, adjacent are two us there ing say indeed. Let land, plaintiff owned uninhabited tracts of one wishes The defendant the other owned the defendant. negligent of a tract, but as a result to erect a house on his When instead. error, property erects it on the plaintiff’s the error, discover the are unable settle parties they to their to judicial system differences and look the for a Solomon-like possibilities decision. Three are immediately apparent.

First, them, the we parties left as find on the may ground that the defendant has an conferred unsolicited upon plaintiff benefit the for which the latter party not should be made to pay. problem ap- with this is is proach it harsh on the defendant quite may enrich the unjustly plaintiff.

Second, the plaintiff may be the defend- required pay ant an equal amount to the value of the improvement the plaintiff. followed, this is approach If the defendant costs, not his but at recoup unjust least enrichment of the plaintiff is avoided. if

Finally, plaintiff the does not wish to retain the benefit, the may be enter the permitted to upon defendant plaintiff’s land for the purpose removing limited the building to the own tract. defendant’s the Troppi

It will be observed that court has followed solution, the second this is although a most equitable issue, approach objects when inanimate are at it wholly is when we are with inadequate dealing children. To illus- assertion, trate this let us examine the forced plight the resources, parent modest who cannot afford to raise his followed, If unplanned child. the second solution is the plaintiff’s will award be reduced damage benefits is, of parenthood, intangible feelings those of love we hope once, most feel their children. At great anomaly apparent; loving becomes more parent, smaller award damage more the entire as family will suffer scarce are economic resources spread over a greater number of members. family what do,

So are we to follow third place solution and not, the child for adoption? Troppi court Certainly itself rejects abhorent, very stating: idea “The law has long recognized desirability permitting be reared his parents.” natural [Id. If the forced to shoulder parent willing N.W.2d at 520] the law should responsibility parenthood, the enormous in his but rather should endeavor path throw obstacles places do in its to assist him. If this everything power defendant, a difficult burden on the it is well to remember tortfeasor, to shift equitable that he is a and it is far more their placed the burden to him than to the who plaintiffs him, he is faith in or the innocent infant for whose birth responsible. then the mother should argument

What of the that carries a unplanned suggestion abort the child? The very defendant, whose pungent depravity. odor of moral child, tortious act is for the responsible conception would now force the termination of its existence so that him damages against assessed be minimized. More- might over, defendant, trespass the who has committed one upon expose mother’s would her to another tres- body, yet pass. solution,

It thus becomes first which apparent that the houses, seemed so when is in fact the applied harsh most when to children. But our exam- equitable applied have with of modest re- ples parent dealt the forced sources. Does this a sort of discrimination suggest against the affluent? It is submitted that the affluent In both just are as as the humble. worthy recovery cases, (though economic resources scarcer one situation than number of other) greater must be over spread existing members with the result that members family will planned might receive less than their share. It even that, be the tortfeasor takes his argued plaintiff since him, damages family he finds awarded affluent so members greater, existing should even be family maintain their current standard of and the latest living, addition to the will not have to live as a “second family however, class citizen.” It could also be that the argued, although greater financial to the affluent injury family, less, that, is so out of some aggregate, proportionately defendant, solicitude for the should be geared to average raising cost a child with family over that amount so de- supplying anything if it sires. (footnotes

Id. at omitted). 1416-1417 While the argument presented very Mr. Kaski is con- vincing, it remains under ordinary true that principles law tort that must his plaintiff damages to mitigate whatever possible. extent Restatement Torts 2d § true, it children Similarly, substantial bring joy I affection to their am well aware of the parents. apparent- anomalous result who receives ly loving parent his great benefit return for affection will receive less economic damages parent than the who has a less healthy child; however, relationship goal with his our is to place unplanned of an child in the he have parent shoes would in if been he had no child. the factors must Certainly, weighed to determine what will return the both plaintiff original position his include economic and Rule, noneconomic concerns. The Benefit difficult though its application be, the may clearly presents most equitable sound analytically result.

It is be may asserted no established to guidelines guide the either jury determining damages alleged by as plaintiff the or after of the Benefit Rule. I application contend responsibility placed that the the here upon jury greater no death than that found or survival wrongful actions; and I believe estab- guidelines appropriate lished to aid fact in determining damages the finder what to award.

Thus, each unique bears a in relation- party responsibility to ship the to be process by damages which are determined. The plaintiff will present damages claims of fact the finder related to the cost of child pregnancy rearing the through plaintiff his The fact majority. provide shall the finder with describing evidence family history; standard location; living; parental aspirations for the geographic child—to reasonably quantifiable—actuarial the extent as- food, shelter, certainment cost of cost of including of a of the maintenance care, and the cost medical schooling, to which a planned security at a level of comfort and experienced; would have family child in the plaintiff’s expenses those additional the court shall consider finally, which the the court and can demonstrate to plaintiff anticipated expenses. reasonably court can determine are expert evidence use of testimo- by The plaintiff may present educators, doctors, or other economists, any medical ny by court should finds No trial expert appropriate. court certainty high degree to show with a require plaintiff must damages The reasonableness of what exist. of action admits. of what this cause light be viewed visits benefit which The of fact shall determine the finder negli- allegedly result of the defendant’s as the plaintiff alleged by act. It must balance the gent reason the defendant and alleged by with benefits plaintiff supra. in Troppi, described through balancing process shall reach a determination The fact finder in this manner damages. amount of of tort law defendant, to ordinary principles pursuant the extent of benefit proving shall have the burden of claims. damage or Stills mitigate plaintiff’s offset Gratton, Cal.Rptr. Cal.App.3d satisfaction, must to the fact finder’s prove

The defendant of the evidence that preponderance elements In addition to other child will benefit. unplanned circumstances, the defendant to a set of unique particular contri- affection, financial potential needs to show love and satisfaction child, or evidence of other butions child. with his relationship his brought parent by in use of by experts The evidence may present defendant or He others. sociology, parenting psychology, psychiatry, indicating earning potential data may present actuarial the contribu- data which determines of the child or actuarial may of a household. He also tion of a child to the operation court deter- kind which the evidence of other present any However, when appropriate. mines is reasonable and evidence, in light he must do so fact finder views this realization that many the toils love of a when parent rearing a child parent pain confront with unknown to other circumstances. The or child’s financial household con- tributions must be light viewed the added financial and emotional burden he contributes to the family. court, however,

No shall consider as evidence of mitigation of damages, Rule, in its application the Benefit any claim by defendant plaintiff did not take an opportunity for an abortion or adoption. Such claims shall Wade, admissible as evidence of mitigation. Roe v. 410 U.S. 113, 705, Sherlock v. Stillwater S.Ct. 35 L.Ed. 147 Clinic, All supra. defense claims regarding shall mitigation be made pursuant to the Benefit Rule.

The issues involved in a wrongful birth case touch very closely privacy rights Both the parents. United Supreme States Court the Pennsylvania Supreme Court have expressed strongly the of privacy fundamental nature rights. The burden undertaken the defendant to prove the extent to which the plaintiff’s damages have been miti gated is not light one. actions His have profound effect upon the right of potential parents to decide whether have children. the fact Accordingly, finder shall be instruct ed that the burden of the defendant not be taken with, The fundamental lightly. rights associated child bear ing are stated Ohio Bowman v. Supreme Court of Davis, 41, 356 Ohio St.2d N.E.2d (1976):

The choice not procreate, part one’s right privacy, has (subject become limitations) to certain Connecticut, constitutional See Griswold v. guarantee. . Wade, .. [supra.]; Roe v. . . . and Doe v. [supra.]; Bolton, U.S. S.Ct. 35 L.Ed.2d 147. Id. 48 499; Ohio at Contra: Shaheen St.2d 356 N.E.2d v. Knight, 11 Pa.D. & 41 (1957). C.2d right to privacy has been recognized by Pennsylvania B, In Courts. The Supreme Re Court has stated 482 Pa. 471, 394 A.2d 419 (1978):

There can be question no that American jurisprudence recognizes the right privacy; only question being

375 D. “The to Samuel Right Privacy,” its limits. See 193. Brandéis, 4 Harvard Review and Louis Law Warren 397, in page Right Privacy stated in 77 C.J.S. As all, right the of such a not existence jurisdictions some but statutory in the absence recognized has been even regulation. case, both

Id., 483, 394 In instant Pa. at A.2d at the 482 surgical at which the hospital involved and the physician subject regulation. were to state procedures performed were right has Court extended Pennsylvania Supreme DeJohn, 486 v. limits in Commonwealth to to privacy greater 1032, denied, Pa. 1283 cert. 444 U.S. 32, (1979), 403 A.2d U.S. where, to (1980), pursuant S.Ct. L.Ed.2d held to attach privacy Art. 1 was right P.S.Const. § This court to a commercial channels. passing through check one light the defendant shall not make the burden of a fundamental infringing upon right. without of a birthy I for the wrongful a cause of action recognize ordi- damages pursuant child and would healthy permit in this tort as nary principles opinion. discussed SPAETH, and Judge, concurring dissenting: in one I opinion except with the agree majority dis For the in and respect. my concurring reasons stated Speck Finegold, Pa.Super. v. senting opinions Stribling (1979), deQuevedo,-Pa.Super. A.2d 496 should be mother -, A.2d 239 I believe (if for emotion permitted prove) damages to recover she can al of her child. distress attributable to the birth I position see no reason to because change my simply mentally or this case to be alleged physically unlikely disabled. I should that a would be expect jury much, when the damages award if in the anything, way child, well normal, although might child is a the jury But award substantial when the child is disabled. I two distinguish see no between the principled reason child, cases, where the case of disabled say accepted jury distress parent’s readily be may genuine the foreseeable result the doctor’s negli- awarded, other, but in gence, they may not be. The difference the not two cases is in between in but It our principle difficulty proof. is not role to say ato that because her be litigant damages may difficult to she not even prove, try prove to them. We should cases, rather trust the here we do in jury, other the worth the appraise presented evidence to it. Sugges- windfall, tions that parent the will receive a or the doctor be seem to disproportionately punished, me to come down to an expression of lack of faith in the I think I jury system. could between the two I distinguish cases. therefore con- else, clude that so could some one assigned sit on jury. HESTER, Judge, concurring dissenting: and I Although agree that this case must remanded for trial, it is the on issue of potential recoverable I appellant that must with part company majority. the is, course, instant case factually similar the situations Speck Stribling: examined in and an allegedly negligent sterilization procedure resulted in the birth of a child con- trary the parent’s wishes. The hallmark distinguishing instant case is that the child here was born healthy— there deformities, are no defects no crippling hereditary or diseases as attended both children in our former opinions. Despite the post-natal child, absence of complications in the allows to recover majority appellant full cost of rearing aid, comfort, offset by the “child’s society during parent’s life At Be- expectancy.” cause this far holding goes that which we beyond approved Speck, of the because verdicts the “bene- speculative fit rule” generate will and the public unwise fostered policy thereunder, I dissent.1 observed, appropriately, principle

1. It has been most that the contro versy negligent question birth control actions revolves around the physician raising educating of whether the must bear the cost of See, Goodman, 51, 62, Wilczynski Ill.App.3d the child. v. 216, 224, Note, (1979); Wrongful Ill.Dec. 391 N.E.2d Con ception; Pays Bringing Baby?, Up Who 47 Fordham L.Rev. 418 birth”2 “wrongful have considered number of courts A new- unhealthy and the of the suits in the context one side results. On varying born and have reached on no limit place apparent which are those courts spectrum birth wrongful recoverable for the amount of incident child, including damages a healthy Bauer, in Custodio Thus, of the child. support A.L.R.3d 884 Cal.App.2d Cal.Rptr. normal child unplanned, of an

court held that all damages from involved physicians could recover sterilization, performed caused proximately negligently with normal tort principles: accord preg- to the unexpected The mental attendant suffering or complications may may because of the nancy result, result, do and the delivery complications failure of a child are all foreseeable of the consequences mother survives without operation the .... Where the her spread is still some loss. must casualty there She over comfort, larger society, protection support care Birth”, Note, (1978); Recovery Support “Wrongful 47 for Child (1972). Tul.L.Rev. 225 generic explained Speck, wrongful wrongful life are 2. As birth Id., suggesting “factually divergent wrongs.” Pa.Super. terms 268 353, 408 A.2d at 502. In both kinds of cases: very wrongful plaintiff alleges existence is “The that the child’s that, physician diagnosed mother’s disease that in resulted in the child’s having had the the deformity of the risk of and informed her pregnancy of the as an a deformed child and termination alternative, born deformed. The the child would not have been wrongful wrongful birth distinction between a life action and a child, by brought is the whereas the action latter is primarily that that former brought by parents. Wrongful conception cases are wrongful wrongful distinguishable life and from both parents cases in in the latter cases want a birth that the child, parents wrongful conception do not whereas in cases Wrongful conception in that the cause a child at all. differs want conception that is of action arises at the time of the unwanted physician.” proximately the acts of the caused 418, Note, Note, 961, (1978); Wayne L.Rev. 47 25 Fordham L.Rev. 419 thus, appropriately (1978), although may more 967-8 this case wrongful conception, v. Stillwater Sherlock be labelled as one for Clinic, Minn., wrongful pregnancy, (1977) 260 N.W.2d 169 or even Clinic, 453, Mich.App. 683 I 268 N.W.2d Bushman v. Burns 83 retain, convenience, wrongful birth nomenclature. will If this group. change status can be meas- family ured it should be as as the economically compensable former losses. 323-4,

251 Cal.App.2d (footnote at 476 omit Cal.Rptr. Ziemba v. ted); accord, Sternberg, 230, App.Div.2d State, Rivera v. (1974); 157, N.Y.S.2d 265 94 Misc.2d Betancourt v. Gaylor, (1978); N.Y.S.2d 950 N.J.Super. Davis, cf. Bowman v. (1975); 344 A.2d 336 48 Ohio St.2d 356 N.E.2d 496 On the other side of the are those spectrum jurisdictions all when deny alleged leads negligence birth of a normal child. Illustrative these cases is Rieck v. Co., Medical Protective 64 Wis.2d 219 N.W.2d (1974). There, the alleged negligence was the failure of the doctor to timely inform the of the fact of the mother’s pregnancy, that had the averring complaint parents been informed, so they would have elected an abor- tion. The court denied the plaintiff’s claim for the costs of rearing the child:

To permit parents to their child and shift keep entire cost of its to a who failed to upbringing physician determine or inform them fact of would pregnancy be to create a new category surrogate parent. Every smile, child’s affection, bond of every love and every reason for parental achievements, in a child’s pride every contribution the child to the welfare well-being is to remain family parents, with the mother and father. For the benefits, most these are part, intangible but are they hand, nonetheless real. On the other every financial cost or detriment-what the complaint terms “hard money damages”—including food, the cost of cloth- ing education, would be shifted to the who physician allegedly failed to timely diagnose the fact of pregnancy. We hold that such result would be wholly out of propor- involved, tion to the and that culpability allowance recovery place would too unreasonable a burden upon physicians, under the facts and circumstances here al- leged. 518-19, (footnote N.W.2d at 244-5.

64 Wis.2d at omitted).3 Garcia, effect are Terrell 496 S.W.2d

To a similar v. Knight, 11 Pa.D. & C.2d 41 Shaheen (Tex.Civ.App.1973)4; 247, 391 P.2d 201 Mudge, Ball v. cf. 64 Wash.2d (1957); and no recovery of unlimited Between the two extremes some, allowing intermediate lay approaches several recovery boundless, birth of a wrongful but not for the benefits child. courts now the so-called healthy Many adopt Torts, 920.5 These (Second) rule of the Restatement § healthy allow of the cost of recovery courts be offset require by its but during minority, virtue of the child’s any accruing parents by benefits birth. of Re-

In with the “same interest” limitation keeping statement, 920, Torts, purpose and its supra, underlying § enrichment, the trier of fact will be prevent unjust of the required to reduce costs the value [rearing] by Hospital, distinguished Rieck in v. St. Michael’s was Dumer (1975) (failure diagnose Wis.2d ALR 2d 1 233 N.W.2d rubella), congenital defects. where the unwanted child was bom with Damages in “limited to those this situation were recoverable but suffered, expenses reasonably necessarily they have certainty will to a in the future reason reasonable medical suffer medical, hospital supportive expense occa- of the additional normal, sioned the deformities of the child as contrasted to healthy at 377. child.” 69 Wis.2d at 233 N.W.2d court, similarly a distinction 4. As did the Wisconsin Texas has drawn Thus, wrongful healthy between in Jacobs v. birth of a child. Theimer, (Tex.1975), child was born 519 S.W.2d 846 a deformed diagnose following alleged negligence physician rubella distinguished newborn the mother. The situa- Court Garcia, supra, recovery expenses tion reasonably necessary Terrell v. and authorized impair- for the care and treatment of the child’s ment. provides: 5. Sec. 920 “Where the has caused harm to the defendant’s tortious conduct plaintiff property doing upon or to his and in so has conferred the the harmed, plaintiff special which was benefit to the interest mitigation

value of the benefit conferred is considered of dam- ages, equitable.” where this is 380 aid, comfort,

child’s and society which will benefit parents for the their duration of lives. Clinic, Minn., v.

Sherlock Stillwater 169, 260 N.W.2d 176 Scarf, (1977) (footnote omitted). Accord, v. Troppi 31 Mich. 240, 187 v. App. N.W.2d 511 (1971); Anonymous Hospital, 33 Sudakin, v. 126, A.2d Green Conn.Sup. (1976); 366 204 cf. 81 545, Mich.App. (1978). 411 Still other courts N.W.2d limit recovery related costs pregnancy expenses and the pain and suffering attendant thereto. “Damages based upon hospital and medical costs attending [the mother’s] unwanted affect her pregnancy, they person, have little to do with the child’s to life right and its concomitant expenses of Wilczynski Good upbringing education.” man, 51, 63, 216, 225, 29 Ill.Dec. Ill.App.3d 479, 391 N.E.2d (1979). These courts thus for the deny recovery costs of the child’s upbringing, but allow damages pain suffering incident to the loss of pregnancy, consortium dur ing the relevant time period, and the medical costs of the sterilization and unplanned pregnancy. Wilczynski, supra; accord, Garrison, Coleman v. 327 A.2d 757 (Del.Super.1974), aff’d., 349 A.2d Clinic, cf. Bushman v. Burns (Del.1975); Mich.App. 453, (1978). 268 N.W.2d 683

I have carefully considered the thoughtful approaches the damages issue taken by these several courts and am not unmindful that whatever avenue is chosen will finally inevi- tably colored with notions of public sensitivi- policyrand ty conflicting legitimate interests of the parents, doctors, and child involved.6 Nevertheless, I am persuaded the first approach discussed, above that of allowing virtually unlimited damages for the wrongful birth of a child, must be rejected. To allow the child, keep the while the entire shifting cost of its upbring- ing to the would amount physician, to a windfall parents and would impose upon the doctor an intolerable financial burden totally out of proportion to the degree culpability Moreover, involved. I do not subscribe to the Indeed, “any one court has observed that solution is a selection of a Bushman, supra, Mich.App. lesser evil.” fn. 268 N.W.2d fn. 3 a child be considered the life of a can theory healthy assertions to the “damage” parents, notwithstanding Bauer, Custodio v. birth of a child that “the supra, at Cal.App.2d less ‘blessed event’ ”. 251 something than [a] a 321, I cannot embrace Cal.Rptr. Accordingly, 59 malpractice a doctor’s damages rule of which would extend providing is responsible to the where he liability point for an term economic otherwise long support 550, See, Note, 558 U.Pgh.L.Rev. born. who wrongfully (1978). is also no damages upon physician

Similarly, impose a would unacceptable ruling provide an result. Such in those medical with unwarranted profession immunity pregnancy. cases where the seeks to avoid patient conduct affect of this would allow tortious practical position totally uncompensable. in such cases to be physician to foster “As said . . . tends Rutledge immunity Justice caution.” tends to induce care and negligence liability while 486, 505, A.2d Flagiello Hospital, v. Pennsylvania 417 Pa. 208 Pa.Super. 268 J.); Speck, supra, (Musmanno, (1965) Guide, 501-2; Feldman, Pa.Trial § A.2d at 353, 408 immunity extend unwilling to thus I am (1978). case. in this

physician intermediate seem, then, approach that an It would either of than response is a more desirable question damages stated, including courts many I have the two extremes. As rule of the the benefits Court, now this use of espouse to do so. 920, but I decline of Torts (Second) Restatement § satisfaction, joy, consider To allow the jury against of damages as mitigation of a child companionship speculative generate child would the costs of to calculate upon as there is no firm basis verdicts smile on a child’s price tag can place dollar amount. “Who Terrell v. in a child’s achievement?” or the parental pride Indeed, the Garcia, (Tex.Civ.App.1973). S.W.2d which the rule by concrete any does not today suggest Court the child’s representing amount will ascertain a dollar jury more has far where a jury In cases “benefit” to appellant. have we holding, today’s under than is guidance provided (cid:127)nonetheless found verdicts a product to be of speculation See, and conjecture. Trovato, e. Gordon v. g. Pa.Super. 279, A.2d 653 While it is true that mere uncer- as to the tainty amount will not preclude recov- Holmes, ery, Pugh 486 Pa. 405 A.2d 897 (1979), it is also clear that jury must have an intelligent under- of how standing should be calculated. Stated another not be based on way, damages may guess or specula- Feldman, Guide, tion. Pa.Trial 34.2 (1978). The benefits § rule, while allowing reasonable certainty computing child, cost of rearing a would then countenance a rule of mitigation conjecture based and upon sheer I guesswork. am not to embark on such willing an unchartered course in this Commonwealth without providing juries our with at least some guidance in reaching a verdict. principled

I thus conclude that the final discussed, alternative above that of costs, awarding pregnancy-related to be the most appropriate measure damages. of will Such costs be readily ascertainable subject and not to speculation; moreover, plac- ing limits on the sums recoverable avoids the evils of a windfall to the parents at the enormous of the expense physician. Further, the rule I would is more adopt conso- nant with the very expenses attendant to the injury real suffered and the obvious difficulties stemming from the unexpected of pregnancy Thus, the woman. should appel- lant trial, establish I liability would hold that she be entitled to recover for the pain and and mental suffering anguish incident to the and the pregnancy costs and ex- penses incurred as a result of the pregnancy.7

CERCONE, HOFFMAN, J., President Judge, join in this concurring dissenting opinion.

PRICE, Judge, dissenting:

I dissent from the opinion majority’s recognizing cause of action for life.” I “wrongful hold to the I views ex- pressed in dissent Speck Finegold, 268 Pa.Super. complaint, appellant request recovery In her did not for the cost of ligation See, Coleman, the tubal supra. or for loss of consortium. to our now on allocatur which is A.2d 496 I of Speck, precedent recognizing Even court. supreme to a cause Speck doctrine of the from the extension dissent child that normal of a healthy, for the birth of action for socioeconomic as “unwanted” its declared a fact to such Speck doctrine extend the reasons. To legal of is, logical progression recognize, situation I foreseeability principle based thought upon submit, how- I liability. imposes act of a doctor negligent sanctity worth and ever, recognizing public policy conclusion majority’s outweighs far of a normal child of this Commonwealth law and courts and dictates that intangible weighing in this complex, from engaging refrain are which we child, a task for normal parenthood Brown, 388 So.2d Trust v. Public Health See ill-equipped. 1084 (Fla.App.1980). I the commendable I note

Further, disagree, although rule in benefit of the adoption in the majority effort stated, I Although expressly mitigation damages. the defend- be borne by proof assume this is a burden not lend themselves matters do ants in such actions. Such must, subject necessity, measure of any proof, whims, speculations prejudices, completely Indeed, precise- to observe interesting fact-finder. it is for loss nature, of their ly speculative because recoverable by are not suffering and mental companionship child, of a wrongful for the death in an action parents (1979) (Roberts, Burd, 146, 404 A.2d 672 see Sinn 486 Pa. Zebe, 33 Pa. R.R. Co. v. Pennsylvania J., dissenting); action, majority life wrongful in this yet, measure, purpose for the to allow the proposes jury rule, the presence the benefit under mitigation aid, comfort and the “child’s inexact factors as similarly of a in the receive society,” child. normal the action I would affirm is indeed open.

Pandora’s box trial court.

Case Details

Case Name: Mason v. Western Pennsylvania Hospital

Court Name: Superior Court of Pennsylvania

Date Published: Aug 24, 1981

Citation: 428 A.2d 1366

Docket Number: 233

Court Abbreviation: Pa. Super. Ct.