Jenkins v. Hospital of Medical College of Pennsylvania

KELLY, Judge,

concurring and dissenting:

I agree with the majority’s analysis that the appellant’s complaint contained two separate and distinct causes of action, one alleging wrongful birth of a child born with Down’s syndrome due to her physicians’ failure to perform an amniocentesis in order to alert appellant to the fetus’ mental deficiencies in time for her to terminate the pregnancy, and another alleging negligence against the hospital for failure to monitor and set appropriate guidelines for the performance of sterilization procedures. The trial court *628 struck the portions of the appellant’s complaint alleging a wrongful birth cause of action against the physicians and allowed the negligence action against the hospital to proceed. As the trial court’s action placed the appellant “out of court” as to the wrongful birth cause of action, I agree that the order is a final order and therefore properly before us on appeal. See Trackers Raceway, Inc. v. Comstock Agency, Inc., supra; Valley Forge Towers v. Ron-Ike F. Ins., 393 Pa.Super. 339 , 574 A.2d 641 (1990).

However, I disagree with the majority’s finding that 42 Pa.C.S.A. § 8305(a) which both prospectively and retroactively banned a cause of action for wrongful birth is unconstitutional. The majority holds that the retroactive application of the statute extinguished the appellant’s already vested right to bring an action for wrongful birth, and therefore, is violative of Gibson v. Commonwealth, supra, which held that the legislature may not constitutionally eliminate a right of action which has already accrued to a claimant. (Majority Opinion at 1102). I disagree with the majority’s conclusion that the wrongful birth claim as stated by the appellant in her complaint was recognized as a valid cause of action before the passage of 42 Pa.C.S.A. § 8305(a).

The majority bases its holding that the appellant’s claims presented a valid cause of action which existed before the passage of 42 Pa.C.S.A. § 8305(a) on Speck v. Finegold, 268 Pa.Super. 342 , 408 A.2d 496 (1979). In Speck , this Court permitted the parents of a child born with neurofibromatosis to maintain a cause of action to recover expenses attributable to the birth and raising of the child against the physicians who allegedly performed a failed vasectomy on the father and an unsuccessful legal abortion on the mother.

On appeal, our Supreme Court affirmed this Court’s holding in Speck v. Finegold, supra, and recognized that under the narrow circumstances of this specific case, where the parents alleged that due to the physicians’ negligence in the performance of both the vasectomy and the abortion, *629 both of which were performed for the express purpose of preventing the conception and birth of a child with neurofibromatosis, the parents could recover for the expenses attributable to the birth and raising of the child. Speck v. Finegold, 497 Pa. 77 , 439 A.2d 110 (1981).

However, shortly thereafter, in Mason v. Western Pennsylvania Hospital, 499 Pa. 484 , 453 A.2d 974 (1982), the Supreme Court refused to allow the appellant, who was the victim of an allegedly negligent sterilization procedure, to recover for the birth of a healthy child. Thus, the Court limited its holding in Speck v. Finegold, supra, to the narrow set of circumstances found in that case.

The majority also cites Ellis v. Sherman, supra, as basis for its determination that a wrongful birth cause of action existed prior to the passage of 42 Pa.C.S.A. § 8305(a). However, the issue of wrongful birth was not before the Court in that case, rather the issue was whether a child born with neurofibromotosis could recover for wrongful life. Ellis, supra. See also 42 Pa.C.S.A. § 8305(b). The Court found that no such cause of action existed and affirmed the trial court’s dismissal of the wrongful life cause of action. The majority instead emphasizes the Court’s comments about the parents’ claims against their physicians for failing to inform them that the father’s neurofibromatosis condition could be passed on to their children. Id. at 1330. However, these comments were not germane to the wrongful life issue before the Court and thus should not be used as a definitive statement of our Supreme Court’s recognition of the existence of a cause of action for wrongful birth in all circumstances before the passage of 42 Pa.C.S.A. § 8305(a).

The only case relied upon by the majority which makes a definitive finding that wrongful birth existed as a valid cause of action before the passage of 42 Pa.C.S.A. § 8305(a) is Silcox v. Bower, 109 Dauph 203, 2 Pa.D. & C. 4th 248 (1989). In Bower, a common pleas court held, using much the same analysis as the majority instantly, that a cause of action for wrongful birth existed in all circumstances before *630 the passage of the statute. Therefore, the retroactive application of the statute extinguished the plaintiffs right to bring a wrongful birth suit and thus is unconstitutional. Silcox v. Bower, supra 2 Pa.D. & C. 4th at 253 citing Gibson v. Commonwealth.

As recognized by the majority, the decision of a common pleas court is not binding precedent and it is not incumbent upon this Court to follow its decision in such a highly unsettled area of law, especially when it comes to calling an act of the legislature unconstitutional. As such, I differ with both the Bower Court and the majority’s expansive interpretation of Speck v. Finegold, supra. I find that the holding in Speck v. Finegold was intended to be limited to the specifically egregrious allegations contained in the parents’ complaint. Thus, I find that the limited factual holding in Speck cannot and should not be used as a basis for the majority’s blanket finding that a judicially established wrongful birth cause of action existed before the passage of the statute. See Mason v. Western Pennsylvania Hospital, supra.

Moreover, I disagree with the majority’s application of the limited factual holding of Speck v. Finegold, supra, to the instant case. The majority finds that the failed vasectomy and unsuccessful abortion which are alleged to have occurred in Speck are analogous to the appellant's instant allegations that her physicians’ failure to perform an amniocentesis was the legal cause of the birth of a child with Down’s syndrome. I find the instant case clearly distinguishable from the limited holding set forth in Speck, especially in light of the dangers associated with the amniocentesis procedure. See Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (1986) (the risk of a woman over thirty-five bearing a child with Down’s syndrome is said by medical experts to be one. in three hundred, while the chances of fetal death due to amniocentesis are between one hundred and one in two hundred). Thus, I find the facts set forth in the instant case are not analogous to our *631 Supreme Court’s limited finding of a wrongful birth cause of action in Speck v. Finegold, supra.

Accordingly, as I cannot find any case law which established a blanket cause of action for wrongful birth before the passage of 42 Pa.C.S.A. § 8305(a), I find that based on the facts alleged in her complaint, the appellant did not have a vested right to bring a wrongful birth action which was extinguished by the retroactive application of 42 Pa.C. S.A. § 8305(a). Thus, on the basis of the facts presented instantly, I find the statute to be in compliance with both Barasch v. Pennsylvania Public Utility Commission, supra and Gibson v. Commonwealth, supra, and therefore, constitutional. Hence, I dissent to the portion of the majority opinion finding 42 Pa.C.S.A. § 8305(a) unconstitutional and would affirm the trial court’s dismissal of the appellant’s wrongful birth claim.