Willinger v. Mercy Catholic Medical Center , 482 Pa. 441 ( 1978 )

OPINION OF THE COURT

ROBERTS, Justice.

A jury awarded appellant Lawrence J. Willinger, Jr., $455,199.75 in a wrongful death and survival action against appellee Mercy Catholic Medical Center. Appellant had brought the action to recover for the death of his son, Leonard. The Superior Court, in a unanimous opinion, affirmed the lower court’s order as to appellee’s liability, but remanded for a new trial on the issue of damages. The Superior Court held the trial court’s charge erroneous.¹ Lawrence Willinger and Mercy Catholic Medical Center each appealed from the Superior Court decision.².

The facts giving rise to this controversy are not disputed. On June 2, 1969, appellant’s five year old son, Leonard, entered Mercy Catholic Medical Center for a tonsillectomy. The medical records indicate that on the day of the operation he was in excellent health. In preparation for the surgery, Leonard was placed under anesthesia. A nurse anesthetist negligently administered the anesthesia. As a result, Leonard’s heart stopped beating for a period of between four and twenty minutes. When the doctor who was to perform the operation arrived in the operating room, he quickly revived Leonard’s heartbeat. The prolonged cardiac arrest, however, caused Leonard to suffer serious brain damage, which, on July 23, 1969, caused his death.

Appellant Willinger urges this Court to reinstate the trial court’s award of damages. The trial court’s charge to the jury with regard to damages under the Survival Act,³ was:

“Here are three items to consider [under the survival action]. First, pain and suffering .

The second item is compensation for loss of future earnings for the working life expectancy of the deceased, less the probable cost of his maintenance reduced to present worth.

The third item, any loss that may have been sustained as a result of the loss of amenities or pleasures of life.

* * * * * *

Leonard had a legal interest in a continuation of his life . the plaintiff, that is, Mr. Willinger, as the administrator of the estate, for the loss of those years of life which you determine the decedent might otherwise have spent on this earth. We are not talking about loss of life as such because loss of life is not compensable. What we are talking about is the loss of life’s pleasures.

I am not going to go into any great explanation on it. An individual has a right to enjoy life, to marry, if you will, to work, to enjoy hunting, enjoy fishing, enjoy watching ball games, even box lacrosse, if you want, all these sorts of things. And if that was cut off because of the negligent act of either or both of these defendants, which was the proximate cause thereof, you can make an award to Leonard Willinger’s estate for that loss.”

Appellant would have us hold that it is not error for a trial court to instruct the jury that, under the Survival Act, it may separately consider an award compensating for the decedent’s “loss of life’s pleasures”.⁴

The rule is well established in Pennsylvania, however, that compensation for the loss of life’s amenities is recoverable only if the victim survives the accident giving rise to the cause of action. Any other rule would be contrary to the compensatory objective of awarding damages to tort victims. We, therefore, affirm the Superior Court’s determination that the trial court committed reversible error when it instructed the jury that it could separately consider and award damages for loss of life’s pleasures.

In Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971), we held that a decedent’s estate could recover damages for pain and suffering and loss of gross earning power from the date of injury until death. Damages from the time of death through decedent’s estimated working lifespan were limited to loss of earning power less personal maintenance expenses. In reaching this holding we stated:

“Quite properly, the injured plaintiff should receive as damages his total estimated future earnings undiminished. But if such a plaintiff dies, his action, whether commenced or continued by his personal representative, is for the benefit of the estate. We cannot be blind to the reality that neither the deceased person nor his estate is burdened with the personal maintenance costs of the decedent . If we were seeking to compensate for the loss of life itself, it may be true that the best approximation of the value of that life could be cast in terms of an individual’s personal maintenance costs. It has never been the law in Pennsylvania, however, nor do we here choose to hold that the loss of life itself is compensable.”

Id., 444 Pa. at 308, 282 A.2d at 229. We discern little or no distinction between seeking to calculate the value of “life itself” and the value of experiencing life’s pleasures. Were we to permit compensation for loss of “life itself”, undoubtedly this intangible item would have to be measured in terms of the loss of those very opportunities to enjoy family, work, and recreation the trial court directed the jury to consider in measuring the loss of life’s pleasures. Thus, to permit a jury to award damages to the estate for the decedent’s loss of life’s pleasures in effect authorizes a type of recovery expressly repudiated in Incollingo.

Even where the victim survives a compensable injury, this Court has never held that loss of life’s pleasures could be compensated other than as a component of pain and suffering. Indeed, the two types of loss are interrelated. As this Court stated in Corcoran v. McNeal, 400 Pa. 14, 23, 161 A.2d 367, 372-73 (1960):

“The loss of well-being is as much a loss as an amputation. The inability to enjoy what one has heretofore keenly appreciated is a pain which can be equated with the infliction of a positive hurt. The conscious loss of a benefit to which one is entitled hurts as much as a festering wound.”

Thus, to a large extent it has been the plaintiff’s consciousness of his or her inability to enjoy life that we have compensated under the rubric of “loss of life’s pleasures”. Unlike one who is permanently injured, one who dies as a result of injuries is not condemned to watch life’s amenities pass by. Unless we are to equate loss of life’s pleasures with loss of life itself, we must view it as something that is compensable only for a living plaintiff who has suffered from that loss. It follows that, under Incollingo, damages for the pain and suffering that may flow from the loss of life’s pleasures should only be recovered for the period of time between the accident and the decedent’s death.

Judge Hoffman, writing for the Superior Court, persuasively rejected the conclusion appellant urges us to reach.

“Thus, case law upholds the distinction between loss of life, in which loss of life’s amenities is not compensable, and impairment of a living person’s faculties, in which instance such loss is recoverable. Therefore, the lower court’s statement of the law was erroneous. We resist the lower court’s attempt to expand the right of recovery in wrongful death and survival actions to include loss of life’s amenities. The problem of translating the loss resulting from an accident into money damages is always a complex and often imprecise calculation. However, our courts and legislature have established some guidelines to assist the jury in compensating loss — loss of life’s pleasures or amenities is simply not one of the elements of recovery in wrongful death and survival actions.”

Willinger v. Mercy Catholic Medical Center, etc., 241 Pa.Super. 456, 469, 362 A.2d 280, 286-87 (1976) (footnote omitted). Accordingly, the Order of the Superior Court is affirmed.

LARSEN, J., filed a dissenting opinion in which MANDERINO, J., joins.

1 . Willinger v. Mercy Catholic Medical Ctr., 241 Pa.Super. 456, 362 A.2d 280 (1976).

2 . We take jurisdiction pursuant to the Appellate Court Jurisdiction Act of 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a). This case was reassigned to the writer on September 29, 1978, for the purpose of preparing an opinion expressing the views of a majority of this Court.

Mercy Catholic Medical Center appeals from the trial court’s denial of the hospital’s request to amend its complaint against additional defendant Go. The hospital made its request after plaintiff’s case had been presented at trial and more than three years after the statute of limitations had run. The hospital’s original complaint against Dr. Go alleged individual negligence in the administration of anesthesia to Leonard Willinger. The attempted amendment would have alleged that Dr.. Go was vicariously liable for the negligence of a nurse anesthetist. Such an amendment would have raised a new cause of action against Dr. Go. See Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965) (new cause of action raised when judgment on one would not bar any further action on the other, a different measure of damages is applicable, different defendants are available, and different proof is required). Since the statute of limitations expired more than three years earlier, the trial court properly denied the amendment. See Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 325, 319 A.2d 914, 918 (1974) (leave to amend liberally “subject to the qualification that any amendment may not introduce a new cause of action after the statute of limitations has run its course”).

3 . Act of June 30, 1972, P.L. 508, § 2, 20 Pa.C.S.A. § 3373 (1975).

4 . Appellant further contends that appellee waived its right to a new trial on damages by objecting to appellant’s motion that special interrogatories be submitted to the jury. Appellant argues that had the jury been required to specifically state the amount they awarded for loss of life’s pleasures, a new trial would not be necessary. This contention must be rejected. Appellant’s argument presumes that had appellees not objected to the submission of special interrogatories, appellant’s request would have been granted. The record indicates, however, that the trial court independently concluded that special interrogatories should not be submitted to the jury. Generally, a trial judge may grant or refuse a request for specific findings on the basis of whether such would add to a logical and reasonable understanding of the issue. “To permit the jury to return special findings, where they are unnecessary, can create misleading issues and defeat justice.” Greet v. Arned Corporation, 412 Pa. 292, 297, 194 A.2d 343, 345 (1963). Here we are unable to declare that the trial court abused its discretion in concluding that special interrogatories were inappropriate.