ALICE WILLIAMS et al., Appellants, v. UNIVERSITY OF CHICAGO HOSPITALS et al., Appellees.
No. 81619
Supreme Court of Illinois
October 23, 1997
HARRISON, J., joined by BILANDIC, J., dissenting.
William V. Johnson and Charles W. Planek, of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan and Mindy Kallus, of counsel), for appellees.
Bruce Robert Pfaff, of Chicago (Francis T. Timons, of counsel), for amicus curiae Illinois Trial Lawyers Association.
Cassiday, Schade & Gloor, of Chicago (Carolyn Quinn and Rudolf G. Schade, of counsel), for amicus curiae Illinois Association of Defense Trial Counsel.
JUSTICE MILLER delivered the opinion of the court:
The plaintiffs, Alice and Jerry Williams, who are husband and wife, brought the present action in the circuit court of Cook County seeking compensation for the extraordinary expenses of raising a child who was born following a failed sterilization operation performed on Mrs. Williams. The plaintiffs allege that the child has attention deficit hyperactivity disorder, a congenital condition, which will require him to receive psychological treatment and special educational training in the future. Ruling on two pretrial motions, the trial judge concluded that the plaintiffs could recover the extraordinary expenses they will incur in treating their son‘s
The procedural history of this case requires only a brief summary. According to the plaintiffs’ fourth amended complaint, Mrs. Williams underwent a tubal ligation at the University of Chicago Hospitals in July 1984. The complaint alleges that her medical history included a possible ectopic pregnancy in 1979, a stillborn child in 1982, a premature birth in 1984, and “at least one hyperactive and learning disabled child.” Defendant Dr. Lane Mercer performed the sterilization procedure, and the plaintiff saw Dr. Mercer and, later, defendant Dr. Ann Zielinski, over the course of the next seven years. During that time, at subsequent appointments, the defendants never informed Mrs. Williams that the tubal ligation was other than successful. Following a laparoscopy performed in 1988 by Dr. Mercer and Dr. Zielinski, Mrs. Williams was told that the devices used in the procedure were properly placed. Mrs. Williams learned in May 1991 that she was pregnant, however, and she gave birth in October 1991 to the child who is the subject of the instant appeal, Emmanuel. According to the complaint, Emmanuel has attention deficit hyperactivity disorder and will require psychological treatment and special educational training in the years ahead. The plaintiffs brought the present negligence action against the University of Chicago Hospitals and
The origins of this appeal lie in certain pretrial rulings made by the trial judge. Before trial, the defendants filed motions in limine seeking to limit the evidence that could be introduced by the plaintiffs. Although the motions are not included in the record on appeal, the record does contain transcripts of the hearings on the motions. Following argument by the parties, the trial judge concluded that the plaintiffs could recover damages for the extraordinary costs they will incur as a result of the child‘s condition. The trial judge also ruled, however, that the plaintiffs could not present expert testimony regarding certain educational services that the child will require, in light of the state‘s constitutional duty to provide a free public education to children.
At the parties’ request, the trial judge certified the following two questions for interlocutory appeal pursuant to Supreme Court Rule 308 (
“[1] Do the parents of a child born following a failed tubal ligation have a cause of action for special damages against the treating physicians and hospital for the extraordinary psychological and/or educational expenses which may be incurred in raising their child, where the complaint alleges that Mrs. Williams’ medical history included a hyperactive son by another father, but there are no allegations or proof that the Defendants proximately caused Emmanuel Williams’ Attention Deficit Hyperactivity Disorder?
[2] Where plaintiff[s‘] expert testifies that the public school will more likely than not fail to provide the appropriate special education, special therapy or mental treatment, should the plaintiff[s] be allowed to present evidence, as part of their damages, showing the future extraordinary educational expenses of the abnormal child in a wrongful pregnancy action?”
The appellate court accepted the case for review (
It will be helpful at the outset to clarify the various causes of action that have previously been asserted by parents and children for birth-related torts. An action for “wrongful pregnancy” or, as it has also been termed, “wrongful conception“—the action involved here—may be brought by parents following a negligently performed sterilization procedure. In an action for wrongful pregnancy, the parents seek to recover compensation for the expenses of the pregnancy they sought to avoid. Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 256 (1987). This court noted in Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983), that parents bringing such an action are generally permitted to recover damages for the cost of the unsuccessful operation, pain and suffering, any medical complications caused by the pregnancy, the costs of the child‘s delivery, lost wages, and loss of consortium. The recovery of those items is not at issue here. In contrast to those damages, however, Cockrum held that parents may not be awarded the expenses of raising a normal, healthy child born following the negligently performed procedure.
An action for “wrongful birth,” a distinct cause of action, refers to a suit brought by parents who allege
Finally, “wrongful life” is the term used to describe an action asserted by a parent or guardian on behalf of a minor in which the child seeks compensation for the failure to give his or her parents proper advice regarding the child‘s congenital condition. Siemieniec, 117 Ill. 2d at 236. In Goldberg v. Ruskin, 113 Ill. 2d 482, 486 (1986), this court refused to recognize an action for wrongful life, noting the nearly universal rejection by courts of a child‘s recovery of general damages under a wrongful-life theory, a result founded “on the value of life and the inherent difficulty of ascertaining a cognizable injury for which damages may be meaningfully awarded.” Siemieniec later reaffirmed Goldberg by denying the child‘s separate wrongful-life claim in that case. Siemieniec, 117 Ill. 2d at 238-53.
The present appeal involves only an action for wrongful pregnancy, brought by the parents of a child born after an unsuccessful sterilization procedure, and the dispositive question in this case is whether the plaintiffs may recover damages for the extraordinary expenses that they allege they will incur in raising a child who is said to have a congenital defect. The plaintiffs believe that Cockrum, properly construed, bars
Authorities in other jurisdictions are divided on the question whether parents may recover extraordinary child-rearing expenses in what would be termed wrongful-pregnancy actions, with some courts denying recovery (see Williams v. Van Biber, 886 S.W.2d 10 (Mo. App. 1994); Simmons v. Hertzman, 99 Ohio App. 3d 453, 651 N.E.2d 13 (1994)) and other courts allowing it (see Fassoulas v. Ramey, 450 So. 2d 822 (Fla. 1984); Emerson v. Magendantz, 689 A.2d 409 (R.I. 1997)). We believe that familiar principles of tort law, as well as considerations of public policy, expressed in our prior cases on this subject, bar the recovery sought by the plaintiffs.
To prevail in an action for medical malpractice, a plaintiff must establish that the defendant‘s breach of a duty of due care proximately caused the injury complained of, resulting in damages. See Addison v. Whittenberg, 124 Ill. 2d 287, 297 (1988). The plaintiffs argue that the birth of an unhealthy child was a natural and foreseeable consequence of the defendants’ negligence. We do not believe that the allegations found in the plaintiffs’ fourth amended complaint are sufficient to establish that the defendants’ conduct proximately caused
In Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943), this court stated:
“What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. [Citations.]”
Thus, “[i]f the result is one that an ordinarily prudent person would have foreseen as likely to occur, then the party will be held responsible, even if the precise injury which resulted is not foreseen.” Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 393 (1986).
We do not believe that the plaintiffs can establish that the defendants’ conduct was a proximate cause of their injury, for under the allegations in this case the plaintiffs’ injury cannot be said to be of such a character
The plaintiffs argue, however, that in this case the defendants had notice of Mrs. Williams‘s medical history, which included a possible ectopic pregnancy in 1979, a stillbirth in 1982, a premature birth in 1984, and “at least one hyperactive and learning disabled child.” The plaintiffs, in substance, contend that the defendants may be liable here because they were aware, or should have been aware, of Mrs. Williams‘s prior maternity-related problems, including the birth of a hyperactive child. We find the plaintiffs’ argument unpersuasive. The plaintiffs do not allege that Mrs. Williams sought sterilization as a means of avoiding conception of a child with that defect; there are no allegations here that would make the birth of a child with the defect a foreseeable consequence of the defendants’ negligence.
Thus, we cannot say that the alleged negligence was the proximate cause of the plaintiffs’ injury in this case. Because the plaintiffs are unable to establish proximate causation, their action for negligence must necessarily fail. Proximate cause is a question of fact for the jury unless there is no material issue regarding the matter or only one conclusion is clearly evident. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995); Gill v. Foster, 157 Ill. 2d 304, 310-11 (1993); Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993). Here, we believe it is appropriate to determine the question as a
On these grounds, then, we must distinguish our decision in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987). In Siemieniec, the plaintiffs alleged that the defendants provided incorrect information regarding the likelihood that a child conceived by them would be afflicted with hemophilia, preventing the parents from making an informed decision about whether to conceive a child or carry one to term. The present action, for wrongful pregnancy, is fundamentally different. As we have noted, the plaintiffs recognize in their briefs that they do not allege that the defendants caused their son‘s condition or that the defendants should have detected the condition before the child was born. Thus, there are no allegations here that the defendants failed to properly advise the parents about the likelihood that a child conceived by them would be afflicted with a particular condition, or that the defendants failed to test the fetus to disclose the possible existence of a condition. Moreover, the plaintiffs do not allege that the defendants were aware of any extraordinary need on the part of the parents to avoid conceiving a child, assuming again that allegations of that nature would be sufficient to sustain liability. We leave unresolved the question whether parents like the Siemieniecs, with a particular need to avoid conception of a child, and who communicate that need to the defendant who performs the sterilization procedure, may recover as damages the extraordinary expenses of raising a child born in the wake of an unsuccessful and negligently performed operation.
The plaintiffs also cite Doerr v. Villate, 74 Ill. App. 2d 332 (1966), in support of their attempt to recover special damages. In Doerr, a husband sought and obtained a vasectomy because of congenital problems
Finally, we believe that allowing recovery of extraordinary child-rearing expenses in these circumstances would be inconsistent with the decision in Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983). Although Cockrum spoke in terms of healthy, normal children, we are reluctant to permit the recovery of the special costs of raising children who allegedly fail to fit that description, in the absence of allegations and proof that the defendant performing the sterilization procedure knew or should have known of the parents’ particular need to avoid conception. The plaintiffs would in effect carve out an exception to the rule announced in Cockrum, allowing compensation for wrongful birth when a child born following a failed sterilization procedure is alleged to be other than healthy and normal. As this court noted in Siemieniec, however, virtually everyone is born with some condition, characteristic, or trait that might be construed as rendering the person other than healthy and normal, and we believe that the exception asserted by the plaintiffs, if recognized, would eventually eclipse the limitation on recovery established in Cockrum. In discussing the wrongful-life action brought on behalf of the child in Siemieniec, this court stated, ” ‘No man is
Given our resolution of the first question certified by the trial court, we have no occasion here to address the second. For the reasons stated, the judgment of the appellate court is affirmed.
Judgment affirmed.
JUSTICE HARRISON, dissenting:
I am pleased that my colleagues still recognize that all human life is precious. I wonder, though, why they save that observation for this case. No one here is suggesting or has ever suggested that Emmanuel‘s attention deficit hyperactivity disorder renders him any less of a person or makes him less deserving of parental love or the protection of the law than other children.
My colleagues rightly point out that we all have faults and that none of us is perfect. Again, however, I wonder what that really has to do with the dispute before us. While we may all suffer congenital deficiencies, not all such deficiencies stand on the same plane. Contrary to the majority‘s implication, lack of athletic ability or short stature or the gene for male pattern baldness are qualitatively different than birth defects or mental disorders, and the law should be sophisticated
In Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983), this court relied heavily on public policy considerations in assessing whether and to what extent recovery should be allowed in so-called “wrongful pregnancy” cases such as this. The court determined that such considerations precluded actions to obtain reimbursement for the regular costs associated with rearing a child. Emmanuel‘s parents, however, are not asking to recover such costs, and nothing in Cockrum precludes recovery for the type of costs involved here.
Treatment of Emmanuel‘s condition will involve extraordinary expenses, not faced by other parents, that would never have arisen if defendants had performed the tubal ligation properly. There is no sound public policy justification for placing the burden of those expenses on Emmanuel‘s parents rather than the responsible parties. If we really value the sanctity of life and the importance of the family unit, we should allow recourse to the parents who have been the victims of medical malpractice and who will have to deal with its consequences on a day-to-day basis. Permitting the medical providers to escape the consequences of their mistakes accomplishes nothing.
Following Cockrum, this court held in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 258-60 (1987), that the parents of a genetically or congenitally defective child may bring a wrongful pregnancy action to recover the
“extraordinary expenses—medical, hospital, institutional, educational and otherwise which are necessary to
properly manage and treat the congenital or genetic disorder.”
This holding should be dispositive of the matter before us today.
The notion advanced by the majority here that plaintiffs’ claim must fail because they did not specifically allege that the defendants “knew or should have known of the parents’ desire to avoid conception of a child with a particular condition” (179 Ill. 2d at 91) is based on an overly narrow interpretation of Siemieniec. In any conception and birth there is a risk of congenital defects, and whenever a doctor performs a sterilization, he knows or should know that a child may be born with such defects if the sterilization is performed improperly. That is enough, in my view, to satisfy the issue of foreseeability. Requiring that the parents be concerned about a particular defect makes no sense and serves no purpose.
Consider, for example, a mother who is sterilized because she fears her child will be born with a hereditary disorder such as Tay-Sachs Disease; the sterilization is done negligently; the mother conceives; and the resulting child is born not with Tay-Sachs, but with spina bifida. There is still a congenital defect, but because it was not the one anticipated, the majority‘s view would leave the mother without recourse for the extraordinary expenses she will incur in raising the child. In effect, the doctor would escape liability based on nothing more than the turn of the genetic roulette wheel. Chance is no basis for a rule of law, especially where the consequences are as serious as the welfare of an afflicted child.
For the foregoing reasons, I would answer the first certified question in the affirmative. Emmanuel‘s parents may bring an action against the physicians and hospital responsible for his mother‘s failed tubal ligation to recover the extraordinary expenses they will
JUSTICE BILANDIC joins in this dissent.