Mason v. Western Pennsylvania Hospital

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 Block-stein 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. 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).

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.

. One member of the Superior Court would have permitted recovery for emotional distress and three members would have permitted recovery of child-raising expenses if these expenses were found to exceed the “benefits” of joy and companionship which the child would provide. See Restatement (Second) of Torts § 920 (1979).

. Our holding is in accord with recent decisions in the appellate courts of Alabama, Arkansas, Delaware, Florida, Kentucky, New Hampshire, New York, Texas, Wisconsin, and Wyoming. See Boone v. Mullendore, 416 So.2d 718 (Ala. 1982); Wilbur v. Kerr, 628 S.W.2d 568 (Ark. 1982); Coleman v. Garrison, 349 A.2d 8 (Del. 1975); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.App. 1980); Maggard v. McKelvey, 627 S.W.2d 44 (Ky.App. 1982); Kingsbury v. Smith, 442 A.2d 1003 (N.H.1982); Sala v. Tomlinson, 87 A.D.2d 670, 448 N.Y.S.2d 830 (1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App. 1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982). See generally Annot., 83 A.L.R.3d 15 (1978).

Five members of the Court agree with Part I of this opinion; Mr. Justice NIX and Mr. Justice McDERMOTT dissent. Four members of the Court agree with Part II of this opinion, Mr. Chief Justice O’BRIEN, Mr. Justice LARSEN, and Mr. Justice FLAHERTY dissent.