Mason v. Western Pennsylvania Hospital ( 1981 )

PRICE, Judge,

dissenting:

I dissent from the majority’s opinion recognizing a cause of action for “wrongful life.” I hold to the views I expressed in dissent in Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979), which is now on allocatur to our supreme court. Even recognizing the precedent of Speck, I dissent from the extension of the Speck doctrine to a cause of action for the birth of a healthy, normal child that is declared by its parents as “unwanted” for socioeconomic reasons. To extend the Speck doctrine to such a fact situation is, I recognize, a logical progression of legal thought based upon the foreseeability principle that the negligent act of a doctor imposes liability. I submit, however, that public policy recognizing the worth and sanctity of a normal child far outweighs the majority’s conclusion and dictates that the law and courts of this Commonwealth refrain from engaging in this complex, intangible weighing of the parenthood of a normal child, a task for which we are ill-equipped. See Public Health Trust v. Brown, 388 So.2d 1084 (Fla.App.1980).

Further, although I disagree, I note the commendable effort of the majority in the adoption of the benefit rule in mitigation of damages. Although not expressly stated, I assume this is a burden of proof to be borne by the defendants in such actions. Such matters do not lend themselves to any measure of proof, and must, of necessity, be subject completely to the whims, prejudices, and speculations of the fact-finder. Indeed, it is interesting to observe that precisely because of their speculative nature, damages for loss of companionship and mental suffering are not recoverable by the parents in an action for the wrongful death of a child, see Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (Roberts, J., dissenting); The Pennsylvania R.R. Co. v. Zebe, 33 Pa. 318 (1858), yet, in this wrongful life action, the majority proposes to allow the jury to measure, for the purpose of mitigation of damages under the benefit rule, the presence of similarly inexact factors as the “child’s aid, comfort and society,” at 1370, which parents receive in the rearing of a normal child.

Pandora’s box is indeed open. I would affirm the action of the trial court.