Mar
05

Illinois Appellate Court Expands Damages Allowable in Wrongful Pregnancy Suit When a Genetic Abnormality is a Foreseeable Consequence of a Sterilization Procedure

The First District held that a plaintiff advancing claims of negligence and wrongful pregnancy can recover extraordinary expenses that would be incurred in raising a child born with sickle cell disease following her mother’s failed tubal ligation procedure. See Williams v. Rosner, 2014 IL App (1st) 120378.

Plaintiffs were both carriers of the sickle cell trait, thus there is a 25% chance that a child they conceive will be born with sickle cell disease and a 50% chance that the child will also be a carrier of the sickle cell trait. Additionally, their first son was born with sickle cell disease. Plaintiffs sought the help of defendant physician to prevent a child with sickle cell disease. Plaintiff elected to undergo a mini-laparotomy and tubal ligation procedure to obtain permanent sterility. Unbeknownst to plaintiff, defendant physician left one of her fallopian tubes and one of her ovaries intact. Two years later, plaintiff learned that she was pregnant and gave birth to her daughter who was subsequently diagnosed with sickle cell disease. Plaintiffs filed suit against defendant physician and his group alleging wrongful pregnancy.

Defendants filed a motion to dismiss arguing that there was no authority in Illinois allowing for plaintiffs in wrongful pregnancy actions to claim damages associated in raising a child born with a genetic abnormality when defendants were not the cause of the genetic defect. The circuit court denied defendants’ motion to dismiss and certified the following question on appeal, which the First District answered in the affirmative:

Whether a plaintiff in an action for wrongful pregnancy may recover the extraordinary expenses of raising a child with sickle cell disease when the defendant physician knew: (1) that the plaintiff and her husband were carriers of the sickle-cell trait; (2) that the plaintiffs had previously conceived a child with sickle-cell disease, and (3) that the plaintiff’s desired sterilization to avoid giving birth to another child afflicted with sickle-cell disease.

There are three different birth-related medical negligence tort claims recognized in Illinois: (1) wrongful birth; (2) wrongful life; and (3) wrongful pregnancy. Wrongful birth actions are brought by parents who allege they would not have conceived a child or carried their child to term but for the negligence of the doctor. In these cases, Illinois has allowed for recovery of extraordinary damages, including medical, institutional, and educational expenses that are necessary to properly manage and treat their child’s congenital or genetic disorder. See, e.g., Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987); Clark v. Children’s Mem. Hospital, 2011 IL 108656, ¶ 74. Wrongful life claims are corresponding actions brought by a parent or guardian on behalf of a minor child who suffers from a genetic or congenital disorder since “but for” the defendants’ negligence, the child would not have been born to experience the pain and suffering attributable to his or her affliction. Wrongful life actions have been repeatedly rejected on public policy grounds favoring life over nonlife and the inherent difficulties associated with calculating damages. See, e.g., Goldberg v. Ruskin, 113 Ill. 2d 482 (1986); Siemieniec, 117 Ill. 2d at 251. Finally, wrongful pregnancy claims are brought by parents of a child who is born following a negligently performed sterilization procedure, as in the instant appeal. In these cases, plaintiffs have been limited to general damages including costs of the unsuccessful operation, pain and suffering, lost wages, and loss of consortium since plaintiffs have not shown proximate cause or foreseeability. See Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983); Williams v. University of Chicago Hospitals, 179 Ill. 2d 80, 84 (1997).

Until the present appeal, no Illinois court created a per se ban on extraordinary damages available to wrongful pregnancy plaintiffs. The First District found the facts of this appeal different from all prior cases in that the allegations establish the requisite link between the physician’s negligence and the plaintiffs’ child’s condition. Plaintiffs had a special need to avoid conception of additional children because they were both carriers of the sickle cell trait and were parents of a son born with sickle cell disease, which was communicated to the physician as the reason they wanted to avoid conception. While the physician did not actually cause the child’s sickle cell disease, one can conclude that her birth and affliction was not only foreseeable, but that it would not have occurred “but for” the negligently performed tubal ligation procedure. Therefore, the First District held that where, as here, the birth of a child with a genetic abnormality is a foreseeable consequence of a negligently performed sterilization procedure and where the parents’ desire to avoid contraception precisely for that reason has been communicated to the doctor performing the procedure, parents may assert a claim for the extraordinary costs that they will incur in raising their child to the age of majority.

Illinois is in the minority of states that allow recovery for child-rearing expenses. Most states have barred recovery of such damages reasoning that the determination of damages is too speculative, the injury is inconsistent with the public policy concerning respect for human life, and the birth of a child is not a compensable wrong. However, given that foreseeability was obvious in Williams, it does not seem that this opinion could be expanded to impose such extraordinary damages against physicians who were not informed of a particular condition necessitating the sterilization or to manufacturers of prophylactic products as they similarly would not have actual knowledge of the specific reasons for sterilization. Despite this, as Illinois courts continue to address these issues of first impression, we should be cognizant of the increasing exposure to liability when contraception and/or sterilization fails.

Trisha K. Tesmer

Trisha K. Tesmer

Trisha K. Tesmer is an Appellate and Litigation partner in the firm's Chicago office.

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