The rules of law applicable to this action for breach of an express warranty given in connection with a tubal ligation are fairly well established. The manner in which they should be applied to the facts of the instant action is not so readily apparent because application is shrouded in procedural confusion.
A doctor and patient may, if they choose to do so, contract that a course of treatment will produce a specific result. If that result is not achieved, the patient may then have an action for breach of contract even though the doctor has exercised the highest degree of professional care. See: Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 486, 453 A.2d 974, 975 (1982). See also: Colvin v. Smith, 276 A.D. 9, 92 N.Y.S.2d 794 (1949); 61 Am.Jur.2d, Physicians & Surgeons § 161 (1981).
An action for breach of contract must be commenced within six years.
Brenda Murray determined after the birth of her fourth child that she would have no more children. On August 12, 1970, she underwent a tubal ligation at the University of Pennsylvania Hospital to prevent further pregnancies. A jury found that Dr. Cynthia W. Cook, acting as agent for the hospital, had expressly warranted that the tubal ligation would prevent future pregnancies. However, in May, 1972, Mrs. Murray found that she was again pregnant. This pregnancy was subsequently terminated by therapeutic abortion. A second tubal ligation was performed on June 12, 1972.
Brenda Murray and Richard, her husband, commenced an action in assumpsit by praecipe for summons on August 6, 1976.
Although we agree that a claim for personal injuries against a physician, whether premised upon medical malpractice or breach of warranty, is subject to the two year statute of limitations, we disagree with the trial court's application of the rule in this case. Here, the plaintiffs also had a cause of action for breach of contract to achieve a specific result. This cause of action was not barred by the statute of limitations. When it became necessary to instruct the jury regarding the damages to be recovered in the latter action, the court erroneously included pain and suffering and loss of consortium as recoverable damages. However, the defendants did not object to the trial court's jury instructions allowing recovery for such damages. The error in those instructions, therefore, was waived. See: Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Tyus v. Resta, 328 Pa.Super. 11,
The only argument which defendants have preserved is that plaintiffs' entire action is barred by the statute of limitations. The two year statute of limitations, they contend, is a complete defense to the plaintiff's entire cause of action. They argue, as they did in the trial court, that plaintiffs are not entitled to recover any damages in this action. This contention, as the trial court recognized, cannot be sustained. Only the claim for personal injury is subject to the two year statute of limitations. Plaintiffs' cause of action, although it requested damages for personal injuries, also sought recovery for the reasonable cost of achieving the result contracted for, i.e., prevention of conception; and the cost of remedying defendants' failure to perform their contract, i.e., the cost of the therapeutic abortion. These claims are not barred by the two year statute of limitations. They represent true contract damages intended to give the injured parties the benefit of their bargain by awarding a sum of money that would, to the extent possible, put them in the same position as they would have been if the contract had been performed. Restatement (Second) of Contracts §§ 347, 348 (1979). Such an action is controlled by the statute of limitations applicable to contracts and must be brought within six years.
Plaintiffs' complaint alleged that defendants had guaranteed that the tubal ligation which they had agreed to perform would prevent future conception. When this contract was breached, the plaintiffs sought damages. Some of the damages claimed were for personal injuries; others were intended to achieve for the plaintiffs the benefit of
Dr. Cook and the hospital have also argued that the parol evidence rule is substantively applicable to prevent recovery on an alleged oral agreement to guarantee the wife-plaintiff's tubal ligation. They contend that because the authorization and release which Mrs. Murray and her husband signed prior to surgery did not contain a warranty as to the success of the procedure and, in fact, purported to release the surgeon and hospital, they could not show a warranty agreement by parol. Whether this argument is valid must depend on whether the release was intended to be the entire agreement between the parties. Dunn v. Orloff, 420 Pa. 492, 495, 218 A.2d 314, 316 (1966); Friestad v. Travelers Indemnity Co., 260 Pa.Super. 178, 191, 393 A.2d 1212, 1218 (1978); National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 373-374, 381 A.2d 963, 965 (1977); 3 Corbin on Contracts §§ 573, 582 (1960). Whether the writing constituted the entire agreement between the parties was a question of law for the court. Walker v. Saricks, 360 Pa. 594, 599, 63 A.2d 9, 11 (1949);
In the instant case, the trial court held that the authorization and release was not intended to be the entire agreement between the parties. We agree. "A release ordinarily covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given." In re Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977). Accord: Restifo v. McDonald, 426 Pa. 5, 9, 230 A.2d 199, 201 (1967); Gateway Center Corp. v. Merriam, 290 Pa.Super. 419, 425, 434 A.2d 823, 826 (1981). Brenda Murray testified that she consented to the operation only because she had been guaranteed that she would not become pregnant again. Neither the meaning of the release nor the fact that tubal ligations sometimes fail, she said, had been discussed with her. She was told that she had to sign the authorization before the surgical procedure could be performed. Her husband said that he had signed the form solely for the purpose of permitting his wife to have the operation. Under these circumstances, the trial court could properly conclude that the authorization for surgery was not intended to be the entire agreement between the parties. Parol evidence was admissible, therefore, to show the existence of an oral
After the trial court awarded a new trial because damages had been awarded by the jury for personal injuries, it did not consider additional reasons asserted by Dr. Cook and the hospital in support of their motion for new trial. Because these include matters which are usually dependent upon the exercise of a sound discretion by the trial court, i.e., verdict allegedly excessive and against the weight of the evidence, we will remand to give the trial court an opportunity to consider the remaining issues raised by the motion for new trial.
Remanded for consideration of the remaining issues raised by Dr. Cook and the University of Pennsylvania Hospital in their motion for new trial. Jurisdiction is not retained.
CAVANAUGH, J., files a dissenting opinion.
CAVANAUGH, Judge, dissenting:
I agree with the majority that the claim for personal injuries whether premised upon medical malpractice or breach of warranty is subject to the two year statute of limitations. I disagree, however, with the conclusion that appellants have waived any objection to the assertion of this claim by failing to object to the court's instructions or asserting it as a reason in support of motions for a new trial.
Appellees have pressed a cause of action, the essential component of which is a claim for personal injuries. They successfully persuaded the trial court to submit this claim to the jury. As the majority concedes, appellants have preserved the argument that the entire action is barred by the statute of limitations. It seems to me that this is enough. Appellants, having duly resisted the flawed cause