Justia.com Opinion Summary: The plaintiffs sought damages for wrongful-birth and negligent infliction of emotional distress, based on medical-provider defendants' failure to inform them that their older child had a genetic mutation. They claim that they would not have conceived a second child if they had been given correct information. The trial court held that damages available in a wrongful-birth action do not include the extraordinary costs of caring for a disabled child after he reaches the age of majority. The appellate court held that plaintiff parents in a wrongful-birth case may recover damages for the cost of caring for their dependent,disabled, adult child and that the plaintiffs had adequately pleaded a cause of action for negligent infliction of emotional distress. The Illinois Supreme Court remanded, noting a question of fact concerning when the limitations period began to run. The court affirmed the holding that the plaintiffs have a claim for negligent infliction of emotional distress; the "zone of danger" test does not apply when damages for emotional distress are an element of another tort. The court reversed and reinstated the judgment that plaintiffs may not recover damages for the postmajority expenses of caring for their son; damages incurred after the age of majority are incurred by the child, who suffered no legal harm.
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Docket No. 108656.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
AMY CLARK et al., Appellees, v. THE CHILDREN’S
MEMORIAL HOSPITAL et al., Appellants.
Opinion filed May 6, 2011.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
Justice Freeman concurred in part and dissented in part, with
opinion.
OPINION
Plaintiffs, Amy and Jeff Clark, individually and on behalf of their
minor son, Timothy, filed a 16-count complaint against several
defendants. Their claims included wrongful birth and negligent
infliction of emotional distress. The circuit court of Cook County
ruled that the damages available in a wrongful-birth action do not
include the extraordinary costs of caring for a disabled child after he
reaches the age of majority. The circuit court also dismissed
plaintiffs’ claim for negligent infliction of emotional distress. Having
already reached a settlement with other defendants, plaintiffs
voluntarily dismissed the remaining counts against the remaining
defendants, Children’s Memorial Hospital and Dr. Barbara Burton,
and the circuit court dismissed the case with prejudice.
The appellate court held that plaintiff parents in a wrongful-birth
case may recover damages for the cost of caring for their dependent,1
disabled, adult child and that the plaintiffs in this case had adequately
pleaded a cause of action for negligent infliction of emotional
distress. 391 Ill. App. 3d 321. Defendants filed a petition for leave to
appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff.
Oct. 15, 2007)), which we allowed. We also allowed Fertility Centers
of Illinois, S.C., the Illinois Hospital Association, and the Illinois
Trial Lawyers Association to file briefs as amici curiae pursuant to
Supreme Court Rule 345 (Ill. S. Ct. R. 345 (eff. Dec. 6, 2005)).
For the reasons that follow, we affirm the judgment of the
appellate court in part and reverse in part.
BACKGROUND
Plaintiffs Amy and Jeff Clark filed suit against Paul Wong, M.D.,
Rush University Medical Center (Rush), Baylor University Medical
Center (Baylor), and Quest Diagnostics Clinical Laboratories (Quest),
alleging various theories of liability in connection with the birth of
their son, Timothy, who has Angelman Syndrome.2 They later added
Children’s Memorial Hospital (Children’s Memorial) and Barbara
Burton, M.D., as defendants. Their amended complaint alleged that
Burton negligently failed to inform plaintiffs of test results revealing
that their first son, Brandon, suffered from Angelman Syndrome due
to a UBE3A genetic mutation, and that they would not have
conceived Timothy had she provided them with accurate information
1
The parties refer to a “disabled, unemancipated adult child.” Because
emancipation applies to minors (see 750 ILCS 30/1 et seq. (West 2006)),
and not to adults, we will use the more precise term “dependent” to refer
to an adult who is incapable of self-support due to a mental or physical
disability.
2
Angelman Syndrome is a congenital condition of faulty body
development marked by growth deficiency, mental retardation, eye
disorders, jerky arm movements, and gait resembling that of a puppet. 1
Attorneys’ Dictionary of Medicine A–351 (2005).
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regarding the risk of giving birth to another child with the same
condition.
According to the complaint, Brandon, who was born in 1997,
began exhibiting developmental delays when he was about 15 months
old. In 2000, plaintiffs sought genetic testing and counseling from Dr.
Wong, a geneticist at Rush, to determine whether Brandon suffered
from Angelman Syndrome, a condition that may be, but is not always,
cause by an inherited gene mutation. Dr. Wong ordered a genetic
sequencing test, which was performed by Baylor on a blood sample
drawn by Quest. Dr. Wong later reported to the plaintiffs that
Brandon’s condition was “clinical” in nature and was not caused by
a genetic abnormality.
Nevertheless, before conceiving another child, Amy sought a
second opinion from Dr. Burton, a geneticist at Children’s Memorial,
to determine if Brandon suffered from Angelman Syndrome due to
the UBE3A gene mutation. In 2001, without first obtaining the results
of the gene sequencing test performed at Baylor or ordering another
test, Dr. Burton informed Amy that all known genetic mechanisms
that might have caused Angelman Syndrome in Brandon had been
ruled out.
The information provided to the plaintiffs by Drs. Wong and
Burton, however, was incorrect. Baylor’s genetic sequencing analysis
of Brandon’s DNA indicated that he suffered from Angelman
Syndrome due to a truncating mutation of the UBE3A gene. If further
testing had been ordered based on this result, it would have revealed
whether the mutation was de novo or hereditary, that is, whether it
was a random occurrence in Brandon’s genes or an inherited
mutation.
Lacking accurate and complete information and relying on Dr.
Burton’s conclusion that all known mechanisms for identifying the
UBE3A gene mutation linked to Angelman Syndrome ruled out the
mutation as the cause of Brandon’s condition, the Clarks conceived
another child.
In March 2002, Amy gave birth to Timothy. In June 2002, she
observed that Timothy exhibited jerky and unpredictable motor
movements, among other symptoms similar to Brandon’s.
On September 30, 2002, after repeated unsuccessful attempts to
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obtain the results of the UBE3A sequencing analysis from Dr. Wong,
Amy contacted Baylor to request a copy of the report. The Baylor
staff member to whom she spoke explained that because testing was
performed under contract with the requesting physician, test results
were released only to the physician, not to the patient. However, the
staff member also mentioned that the results of Brandon’s genetic
sequencing test were “abnormal.”
The report, which was eventually obtained through the efforts of
counsel, concluded that Brandon’s UBE3A gene was truncated and
that further testing was needed to determine if Amy was a carrier of
the abnormal gene. Dr. Burton acknowledged that later testing has
revealed that Timothy’s mutation was inherited from Amy and that
had she obtained the test result from Baylor, she would have
counseled plaintiffs differently.
Timothy, like his brother Brandon, was diagnosed with Angelman
Syndrome.
In September 2003, plaintiffs filed their initial wrongful-birth
complaint, which was amended several times. The first amended
complaint, filed on September 7, 2004, added Dr. Burton and
Children’s Memorial as defendants. Plaintiffs later voluntarily
dismissed Baylor and reached settlements with Wong, Rush, and
Quest.
In 2006, Dr. Burton and Children’s Memorial–by then the only
remaining defendants–moved for summary judgment on the ground
that plaintiffs failed to bring suit against them within the two-year
limitations period set forth in section 13–212 of the Code of Civil
Procedure (735 ILCS 5/13–212 (West 2006)). The circuit court
denied the motion, reasoning, in part, that there was “at least a
question of fact” as to when the statute was triggered and the
limitations period began to run.
Plaintiffs subsequently filed their third amended complaint in
2008, seeking damages for wrongful birth consisting of the
extraordinary costs of caring for Timothy during his minority, the
extraordinary costs of caring for him after he reaches the age of
majority, and his lost wages. In support of their claim for the
extraordinary costs of caring for Timothy during his majority,
plaintiffs alleged that Timothy “is and always will be mentally
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disabled,” that Angelman Syndrome is a “permanent genetic disorder
with no chance of ever being cured,” and that Timothy has “no
chance of leading an independent life as an adult or being
emancipated.” Plaintiffs further alleged that, as a disabled adult,
Timothy “will not be able to care for himself in any way and will
require substantial sums of money to sustain his life.” As a result,
plaintiffs “will continue to care for Timothy *** into his majority and
will be legally liable for some or all of these costs because Timothy
will never be emancipated.”
Plaintiffs also sought damages for the separate tort of negligent
infliction of emotional distress.
The circuit court ruled that plaintiffs could recover damages for
the extraordinary costs of caring for Timothy during his minority, but
could not recover damages for the extraordinary costs of caring for
him after he reaches the age of majority. Pursuant to section 2–615 of
the Code of Civil Procedure (735 ILCS 5/2–615 (West 2006)), the
court dismissed those portions of plaintiffs’ third amended complaint
alleging negligent infliction of emotional distress and those counts
seeking damages for Timothy’s lost wages and the extraordinary
medical expenses of caring for him during his majority. Because the
only remaining claim, that seeking damages for the extraordinary
expenses of caring for Timothy during his minority, would have been
completely offset by the previous settlement with other defendants,
plaintiffs voluntarily dismissed this claim. The circuit court dismissed
the case with prejudice, stating there was no just reason to delay
enforcement or appeal.
The appellate court affirmed in part and reversed in part, and
remanded for further proceedings. 391 Ill. App. 3d 321. The court
reversed the circuit court’s dismissal of the counts seeking
postmajority damages and the counts alleging negligent infliction of
emotional distress. However, the appellate court affirmed the
dismissal of the counts seeking damages for lost wages. According to
the court, any recovery for lost wages would be duplicative of the
damages for the extraordinary costs of caring for Timothy during his
majority. The appellate court also declined to consider defendants’
alternative argument that the dismissal of plaintiffs’ complaint should
be affirmed on statute of limitations grounds.
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ANALYSIS
A motion to dismiss pursuant to section 2–615 of the Code of
Civil Procedure (735 ILCS 5/2–615 (West 2006)) challenges the legal
sufficiency of the complaint by alleging defects on the face of the
complaint. Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004). In ruling on a
section 2–615 motion, we accept as true all well-pleaded facts in the
complaint and all reasonable inferences therefrom. Vitro, 209 Ill. 2d
at 81. The critical inquiry is whether the allegations of the complaint,
when construed in a light most favorable to the plaintiff, are sufficient
to state a cause of action upon which relief may be granted. Wakulich
v. Mraz, 203 Ill. 2d 223, 228 (2003); Vitro, 209 Ill. 2d at 81. We
review an order granting a section 2–615 motion to dismiss de novo.
Wakulich, 203 Ill. 2d at 228; Vitro, 209 Ill. 2d at 81.
In Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 258
(1987), this court recognized that the parents of a child born with a
genetic or congenital disorder have a cause of action in tort if, but for
the defendant’s negligence in testing or counseling as to the risk of
giving birth to a child with such a condition, they would have avoided
conception or terminated the pregnancy. In Siemienic, the remedies
sought by the plaintiff parents of a child born with hemophilia, a
bleeding disorder, included the extraordinary medical and other
expenses involved in caring for the child during his minority and
damages for their emotional anguish and suffering. Id. at 253.
This court allowed recovery of damages for “the extraordinary
expenses–medical, hospital, institutional, educational and
otherwise–which are necessary to properly manage and treat the
congenital or genetic disorder,” noting that the plaintiff parents were
seeking to recover only such expenses as would be incurred prior to
the child’s reaching the age of majority. Id. at 260. This court also
held that the parents could not recover damages for their emotional
distress as an “element in the calculation of damages” for wrongful
birth (id. at 261), because they could not state a claim for negligent
infliction of emotional distress under the “zone-of-danger rule” (id.
at 262-63).
Two issues raised by the defendants in this appeal involve the
remedies available to successful plaintiffs in a wrongful-birth action.
The first question–whether the parents may recover damages for the
extraordinary expenses of caring for the disabled child after he
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reaches the age of majority–was not answered in Siemieniec because
the parents in that case did not allege their child suffered from a
condition that would cause him to be financially dependent as an
adult. In the present case, the parents have alleged that their child’s
condition will make it impossible for him to be self-supporting as an
adult. The second question–whether the parents may recover damages
for emotional distress caused by the defendants’ negligence–was
answered in Siemieniec in the negative. Defendants also ask this court
to review the circuit court’s ruling on their motion for summary
judgment based on the statute of limitations, which the appellate court
did not consider.
A. Damages for Costs of Care Beyond Age of Majority
The circuit court ruled that while the plaintiff parents in a
wrongful-birth action may recover damages for the extraordinary
costs of caring for their child during his minority, they may not
recover damages for such costs after he reaches the age of majority.
The appellate court reversed, holding that postmajority expenses are
recoverable damages that compensate parents for the “costs they will
incur for caring for their disabled child.” 391 Ill. App. 3d at 330. In
reaching this conclusion, the appellate court noted that in a
dissolution proceeding, “support obligations for an unemancipated,
disabled child over the age of majority” are determined on a case-bycase basis and thus found no basis for “automatically forclos[ing]
damages in a wrongful birth case for the extraordinary costs of caring
[for] and supporting an unemancipated, disabled child beyond the age
of majority.” Id. at 329. The concurring justice explained that public
policy favors imposing these costs on the tortfeasor, rather than on the
parents or the taxpayers, and suggested that if this assumption
regarding public policy is incorrect, the error will be corrected
through the legal or the political process. Id. at 333 (Gallagher, J.,
specially concurring).
Before this court, defendants argue that because parents have no
legal obligation to support a child beyond the age of majority, parents
in a wrongful-birth suit may not recover damages for postmajority
expenses.
Plaintiffs assert four separate bases for allowing such damages.
-7-
First, they argue that they may be held liable for Timothy’s
postmajority expenses under Illinois common law and, as a result,
they may recover damages from the tortfeasor whose negligence
resulted in their liability. Second, they argue that Illinois statutory law
supports the same result. Third, they rely on decisions from other
jurisdictions allowing plaintiff parents in wrongful-birth cases to
recover postmajority expenses as an element of damages and urge this
court to follow the reasoning of these cases. Fourth, they assert that
the public policy of the State of Illinois supports holding the
tortfeasor responsible for these foreseeable costs.
We begin our analysis with the fundamental premise of tort
law–that of just compensation for any loss or injury proximately
caused by the tortfeasor. See Siemieniec, 117 Ill. 2d at 259. Damages
are recoverable to the extent necessary to place the injured party in
the position he would have occupied if the wrong had not been
committed. Genslinger v. New Illinois Athletic Club of Chicago, 339
Ill. 426, 443 (1930). See also Wilson v. The Hoffman Group, Inc., 131
Ill. 2d 308, 321 (1989) (stating that it is well settled under our
precedent that “[t]he purpose of compensatory tort damages is to
compensate the plaintiff for his injuries, not to punish defendants or
bestow a windfall upon plaintiffs”); Best v. Taylor Machine Works,
179 Ill. 2d 367, 406 (1997) (“[t]here is universal agreement that the
compensatory goal of tort law requires that an injured plaintiff be
made whole”); Restatement (Second) of Torts §903, cmt. a, at 453-54
(1979) ( “compensatory damages are designed to place [a plaintiff] in
a position substantially equivalent in a pecuniary way to that which
he would have occupied had no tort been committed”).
Thus, the plaintiffs’ ability to recover damages for the
extraordinary expenses of caring for their son after he reaches the age
of majority depends on whether parents have an obligation under
Illinois law to support a disabled, dependent adult child. If they have
no such obligation, these expenses are not legal harms suffered by the
parents, despite their commitment to care for their son throughout his
life and their willingness to assume these costs voluntarily.
The appellate court recognized this requirement, noting that for
parents to recover from a tortfeasor for their child’s medical
expenses, “they must be legally liable for the charges, and the basis
for such liability must exist prior to the creation of the charges and
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not arise due to a voluntary assumption of financial responsibility
after the fact.” 391 Ill. App. 3d at 328 (citing Tully v. Cuddy, 139 Ill.
App. 3d 697, 699 (1985)). The question for this court, therefore, is
whether Illinois law imposes such an obligation.
1. Common Law
The generally accepted common law rule is that parents have no
obligation to support their adult children. People v. Hill, 163 Ill. 186,
189 (1896) (“The duty of parents to provide for the maintenance of
their children is a principle of natural law; but the common law does
not, like the civil law, fully enforce this mere moral obligation, but
simply goes to the extent of requiring parents to support their
offspring until they attain the age of maturity.”).
Plaintiffs assert that the common law of Illinois recognizes an
exception to this general rule for the support of an adult child who is
physically or mentally incapacitated and incapable of supporting
himself. We find, however, that the history of our common law
reveals that the generally accepted common law rule is the law of
Illinois, with specific, narrow exceptions that have since been
codified by statute.
According to plaintiffs, the earliest reported Illinois decision
discussing the issue of postmajority support is Plaster v. Plaster, 47
Ill. 290 (1868). Twelve years after the wife obtained a divorce on the
grounds of desertion, she sought support for the son, who had been
three years old at the time of the divorce and for whom the father had
not, in the intervening years, provided any financial support. This
court said that “[a]fter the boy became able to earn a support, in
whole or in part, the father was not bound to maintain him in
idleness, but only to contribute and pay for such portion as the child
could not earn by reasonable effort.” Id. at 293. Because the record
did not reveal the boy’s situation, “it would be proper to ascertain
what the boy has been capable of earning for his own support, and if
that would have been insufficient, then the remainder which was
necessary should be ascertained and allowed.” Id. Further, “[i]f the
boy has attained an age that he is capable of supporting himself,” the
court would not require the father to contribute to his support. Id. at
294. If, however, “from physical debility and impaired health, the boy
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is unable to earn a livelihood, and must depend upon others for
support, who should more naturally contribute to that end than his
father?” Id.
The issue in Plaster was not whether a parent is obliged to
support a disabled adult child. The issue was whether the mother,
who had originally been awarded custody of the son, but no support,
could return to court years later seeking a support order. This court
ruled that the child, then in his teens, was entitled to support from his
father to the extent that he was unable to support himself. The court
noted that if he were incapable of supporting himself, his father
should do so. The decision made no mention of what obligation either
parent might have had once the child reached the age of majority.
Plaster, therefore, offers little support for plaintiffs’ position.
Plaintiffs also rely on Freestate v. Freestate, 244 Ill. App. 166
(1927), in which the appellate court was asked to determine whether
a divorced father could be ordered to pay support for a 23-year-old
invalid daughter. Although this appellate court decision has no
binding authority in the trial court because it was filed before 1935
(see Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 95
(1996)), it is of historical interest. The couple had divorced when the
daughter was 13 and custody was given to the mother. No provision
for child support was made at that time. Freestate, 244 Ill. App. at
167. The mother returned to court 10 years later, seeking support for
the now-adult daughter. The appellate court ruled that the trial court
had jurisdiction in the matter and had the authority to enter a support
order despite the daughter’s age. The court cited cases from the court
of appeals of Kentucky (Crain v. Mallone, 113 S.W. 67 (Ky. 1908))
and the Supreme Court of Vermont (Rowell v. Town of Vershire, 19
A. 990 (Vt. 1890)) as a basis for concluding that the “natural, as well
as the legal, obligation” is the same whether the child is an infant or
an adult child who is “helpless and incapable of making his support.”
Freestate, 244 Ill. App. at 169-70.
Freestate was cited in a more recent case, Strom v. Strom, 13 Ill.
App. 2d 354 (1957). The parents divorced when their daughter was
three years old. She was subsequently stricken with polio, although
the opinion does not state that she was disabled as a result. Ten years
after the divorce, at which time she would have been 15, the mother
sought an increase in child support and reimbursement of various
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expenditures. Id. at 358. She also asked that the father be ordered to
pay the reasonable expenses of a college education for the girl. The
trial court denied this relief on the basis that it lacked jurisdiction.
The appellate court examined cases from Illinois and other states and
found nothing in the Divorce Act to specifically preclude an order
providing for a child’s education beyond the age of majority. Id. at
362. In the end, the court concluded that “[w]here such care and
education are necessary to equip the child for adult life and where the
financial circumstances of the father are entirely adequate to meet
such requirements, equity can and should continue its jurisdiction.”
Id. at 364. The court observed that “[o]ne of the fundamental rules is
that a court of equity having taken jurisdiction will retain it for all
purposes and do complete justice between the parties.” Id. at 367.
The Strom court rejected the reasoning of Rife v. Rife, 272 Ill.
App. 404 (1933), that “by necessary implication” the Divorce Act did
not permit an award of support beyond the child’s minority. Strom, at
363 (citing Rife, 272 Ill. App. at 410). In Rife, the father appealed
from an order that he continue to pay support for a 20-year-old
daughter who had graduated from high school and from a business
school but who, because she was “frail” and suffered from
“depression,” could not secure employment. Rife, 272 Ill. App. at
406. Referring to the Divorce Act, the appellate court stated that the
“rule is well established and generally recognized that the only
authority a court of chancery has to provide for the care and support
of children is the power granted under the terms of this statute, and
that its power is limited by implication to the custody, support and
care of minor children.” Id. at 408. Further, the rule “is also well
recognized that in the absence of a proceeding for divorce, a court of
equity has no jurisdiction either as to the custody or support of
children.” Id. Thus, the court reversed that portion of the judgment
awarding support for the adult daughter. Id. at 413.
In Freestate and in Strom, the appellate court allowed the trial
court to exercise its equitable power to order a noncustodial father to
contribute to the support of his adult child either because he was
disabled or because she desired a college education. These cases do
not stand for the general proposition that all parents, married or
divorced, have an obligation to support an adult disabled child or to
pay for a child’s college education. They suggest, at most, that once
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parents submit to the jurisdiction of the court by obtaining a divorce,
the court has discretion to order postmajority support in limited
circumstances. Even this narrow principle, however, was not
universally accepted, as demonstrated by the decision in Rife. In any
event, subsequent legislative enactments have rendered these cases of
little value in answering the question at bar.
We conclude that the common law as developed in cases through
the late 1950s was in conflict regarding the obligation of parents to
support a disabled adult child and that cases in which such support
was awarded were limited to those in which a custodial parent sought
support from a noncustodial parent following a divorce. In the middle
of the last century, the issue became more and more one of statutory
law.
2. Statutory Law
A statutory exception to the generally accepted common law rule
was made by the Paupers Act of 1874, which provided that parents
had the legal duty to support a child who was a “poor person ***
unable to earn a livelihood in consequence of any bodily infirmity,
idiocy, lunacy, or other unavoidable cause.” Ill. Rev. Stat. 1874, ch.
107, §1.
This statute was repealed in 1949, coincident with enactment of
the Illinois Public Aid Code, which initially imposed a duty of
support of adult children “in need and unable to earn a livelihood in
consequence of any unavoidable cause.” 1949 Ill. Laws 418, §4–2.
See Ill. Rev. Stat. 1955, ch. 23, par. 436–12; Ill. Rev. Stat. 1965, ch.
23, par. 112 (providing that “parents are severally liable for the
support of any child *** 18 years of age or over whenever such child
is unable to maintain himself and is, or is likely to become, a public
charge”).
This parental duty was substantially narrowed in 1967, when the
Public Aid Code was amended to provide that parents were obligated
to support an adult child over the age of 21 only if that child was
blind or permanently disabled and two conditions were met. The child
must have been “continuously dependent, in whole or in part, upon
one or both of his parents” and he must have “continuously resided
in the home of a parent” except for certain exempted temporary
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absences. 1967 Ill. Laws 2328, §1.
Subsequent amendment of the Public Aid Code in 1969
eliminated any duty of parental support of nonminor children, even
those who are disabled. Ill. Rev. Stat. 1969, ch. 23, par. 10–2.
The Public Aid Code presently provides that “parents are
severally liable for the support of any child under age 18, and for any
child aged 18 who is attending high school, until that child graduates
from high school, or attains the age of 19, whichever is earlier.” 305
ILCS 5/10–2 (West 2006).
Thus, although the legislature for a time imposed a parental
support obligation to support dependent adult children, it abandoned
that policy decades ago.
Other statutes are consistent with the generally accepted common
law rule of no parental duty of support. Under the Mental Health and
Developmental Disabilities Code, “responsible relatives” of a
recipient of services from the Department of Mental Health “shall be
liable for medical costs,” excluding “service charges incurred by a
child after the child reaches the age of majority.” 405 ILCS 5/5–105,
5–115 (West 2006).
The Family Expense Act is a codification and expansion of
common law doctrine of necessaries, under which a wife or minor
child could obtain necessary goods or services on credit and the
husband or father was liable, based on his duty to support his family.
See, e.g., Hunt v. Thompson, 4 Ill. 179, 180 (1840) (“[A] parent is
under an obligation to provide for the maintenance of his infant
children, is a principle of natural law; and it is upon this natural
obligation alone that the duty of a parent to provide his infant children
with the necessaries of life rests.”); Phillips v. Dodds, 371 Ill. App.
3d 549, 551-52 (2007) (explaining that the Family Expense Act
defines “family expenses” more broadly than mere “necessaries”).
Under this statute, “[t]he expenses of the family *** shall be
chargeable upon the property of both husband and wife, or of either
of them, in favor of creditors therefor, and in relation thereto they
may be sued jointly or separately.” 750 ILCS 65/15(a)(1) (West
2006).
Judicial decisions interpreting this statute have consistently
interpreted it as imposing an obligation on parents only until their
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child attains his majority. See, e.g., Proctor Hospital v. Taylor, 279
Ill. App. 3d 624, 628 (1996) (“[O]nce a child reaches the age of
majority, the parents’ responsibility to support the child ceases, and
the parents may no longer be held liable for these expenses under the
Expense Statute.”); Pfeil v. Weerde, 152 Ill. App. 3d 759, 761 (1987)
(holding that mother may not recover damages for her voluntary
payment of medical expenses of 19-year-old daughter who lived at
home; stating that “it is manifest that a parent is not liable under the
[family expense] statute for expenses an adult child incurs”). See also
Sapp v. Johnston, 15 Ill. App. 3d 119, 123-24 (1973) (father not liable
for medical expenses of adult son under Public Aid Code, family
expense statute, or the common law).
We note that we have found no reported cases construing the
Family Expense Act that involve an adult child who was incapable of
self-support due to a disability. However, nothing in the language of
the statute suggests that it should be interpreted differently if the adult
child were not capable of self-support. Excluding disabled adult
children from the scope of the Family Expense Act is also consistent
with the Public Aid Code and other statutory enactments.
Plaintiffs point to only one statute under which the parents of a
disabled adult child may be required to contribute to his
support–section 513 of the Illinois Marriage and Dissolution of
Marriage Act, which is entitled “Support for Non-minor Children and
Educational Expenses.” 750 ILCS 5/513 (West 2006). Section
513(a)(1) of this statute provided the basis for the appellate court’s
conclusion:
“(a) The court may award sums of money out of the
property and income of either or both parties or the estate of
a deceased parent, as equity may require, for the support of
the child or children of the parties who have attained majority
in the following instances:
(1) When the child is mentally or physically disabled
and not otherwise emancipated, an application for support
may be made before or after the child has attained
majority.” 750 ILCS 5/513(a)(1) (West 2006).
The appellate court concluded in the present case that this
statutory language “reflects the legislative intent that the trial court
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consider the unique challenges and needs of mentally and physically
disabled children on a case-by-case basis in determining whether to
award moneys for the support thereof into their majority.” 391 Ill.
App. 3d at 329. The court saw “no cause why a different set of rules
should apply here, in a nondissolution proceeding.” Id.
We do see a reason to apply a specific statutory rule in the context
of a dissolution and a general common law rule in the context of
determining damages for a common law tort. An examination of the
history of section 513 is in order.
In 1967, the General Assembly amended what was then called the
Divorce Act, adding the following language:
“The court may, on application, from time to time, make such
alterations in the allowance of alimony and maintenance, and
the care, education, custody and support of the children, as
shall appear reasonable and proper and the court has
jurisdiction after such children have attained majority age to
order payments for their support for educational purposes
only.” (Emphasis added.) 1967 Ill. Laws 3446, approved
August 31, 1967 (codified at Ill. Rev. Stat. ch. 40, par. 19).
By expressly limiting the circumstances under which a court may
order support after a child of divorced parents has “attained majority
age,” this statute abrogated any existing equitable doctrine that
allowed courts to order support for adult children for any purpose
other than education. Thus, Freestate and Strom were legislatively
overruled. To the extent that Plaster provided any authority for
imposing a postmajority support obligation, it was also rendered
obsolete.
Then, in 1977, the General Assembly enacted the Illinois
Marriage and Dissolution of Marriage Act. Section 513(a)(1), which
was quoted by the appellate court’s opinion, was added. Section
513(a)(2), which the appellate court did not reference, provides, in
pertinent part:
“(2) The court may also make provision for the
educational expenses of the child or children of the parties,
whether of minor or majority age, and an application for
educational expenses may be made before or after the child
has attained majority, or after the death of either parent. The
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authority under this Section to make provision for educational
expenses extends not only to periods of college education or
professional or other training after graduation from high
school, but also to any period during which the child of the
parties is still attending high school, even though he or she
attained the age of 19.” 750 ILCS 5/513(a)(2) (West 2006).
Further:
“(b) In making awards under paragraph (1) or (2) of
subsection (a), or pursuant to a petition or motion to decrease,
modify, or terminate any such award, the court shall consider
all relevant factors that appear reasonable and necessary,
including:
(1) The financial resources of both parents.
(2) The standard of living the child would have
enjoyed had the marriage not been dissolved.
(3) The financial resources of the child.
(4) The child’s academic performance.” 750 ILCS
5/513(b) (West 2006).
By enacting these provisions, the legislature expressly adopted
two exceptions to the general rule of no parental obligation for the
support of adult children. This statute, in effect, reinstates the
equitable power of the court to do what was done in Freestate and
Strom. See, e.g., In re Marriage of Raski, 64 Ill. App. 3d 629, 632
(1978) (noting common law rule that parents’ liability for child
support terminates at the child’s majority, with “certain statutory
exceptions” found in the recently enacted Marriage and Dissolution
of Marriage Act).
We conclude for several reasons that the history of section 513,
viewed in light of the other legislative enactments discussed above,
reveals that Illinois law does not impose an obligation on married
parents to support a disabled child beyond the age of majority.
First, in light of the contrary provisions of the Public Aid Code,
the Family Expense Act, and other statutes, section 513 standing
alone does not reveal an overarching legislative policy to abrogate in
other contexts the long-standing common law rule of no parental
obligation to support an adult child. Rather, by adopting the two
exceptions set out in section 513 in 1977, the legislature
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demonstrated its ability and intent to carve out exceptions to the
general rule when it desires to do so. It could impose a support
obligation on the parents of disabled adult children in other contexts
such as the Public Aid Code, the Family Expense Act, or the Mental
Health and Developmental Disabilities Code, but has not chosen to
do so.
Second, the clear intent of sections 513(a)(1) and (a)(2) is to
provide the child of divorced parents who is unable to support himself
due to a disability or who seeks higher education with the standard of
living he would have enjoyed had his family remained intact. See In
re Marriage of Kuhn, 221 Ill. App. 3d 1, 3-4 (1991) (stating that the
purpose of section 513 “is to protect the interests of children whose
parents have decided to dissolve their marriages”). Thus, in an intact
family, the parents are free to decide, for their own reasons, whether
they are willing or able to support an adult child, whatever his
circumstances. See id.
Plaintiffs’ brief notes that they are presently separated and could,
at some future date, divorce, and one of them might seek support for
Brandon and Timothy from the other under section 513(a)(1). This
would be an application of the statute in the manner the legislature
intended–to preserve, as much as possible, the benefits of an intact
family for the children of divorce. However, if plaintiffs were to
recover damages for Timothy’s postmajority support and then
divorce, these funds would be marital property, subject to division.
Their expressed intent to place any such funds in a trust for Timothy
is admirable, but is not something the court could order them to do.
Third, section 513 invokes the court’s equitable powers. The child
of divorced parents who seeks postmajority support due to a disability
or to attend college is not entitled to receive such support. The court
may, at its discretion and in the exercise of its equitable powers,
impose a support obligation on either or both parents when such an
obligation would not otherwise exist. In contrast, the issue in the
present case is not whether, as a matter of equity, the court has the
discretion to award damages to these parents for their child’s
postmajority expenses. This is an action in tort where the plaintiff
parents must prove that they are entitled–as a matter of law–to the
damages sought because they represent a cost for which they are
legally responsible.
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Finally, placing such significance on section 513 and ignoring the
other statutes that limit parental responsibility to the support of minor
children would lead to unintended results. For example, if this court
were to hold in the present case that the plaintiff parents in a
wrongful-birth action have a legal obligation to support their child
after the age of majority, will that child have a claim on his parents’
estate to the disadvantage of nondisabled siblings? And if the
defendant is unable to pay the judgment and files for bankruptcy, will
the parents be liable for the child’s lifetime support? What if the
damages awarded to the parents prove to be insufficient and are
consumed by the time the child reaches the age of majority? Are his
parents legally responsible for his future support? Or will parents who
have a potential wrongful-birth claim against a negligent health care
provider forgo bringing suit so that they may avoid having this new
obligation thrust upon them?
We cannot foresee all of the potential effects that may flow from
a decision by this court that section 513 creates a parental obligation
of lifetime support of disabled children, even if the parents remain
married to each other. Any effort on our part to limit application of
such a holding to those families in which the parents have obtained
a judgment in a wrongful-birth action would be doomed to failure.
If the legislature prefers a different result that would place the
burden of support on the tortfeasor rather than on the parents or the
taxpayers, it could do so. Absent such legislative guidance, however,
we conclude that under the common law and statutes of Illinois,
parents are not obligated to support a child after he reaches the age of
majority, even if he is unable to support himself, unless ordered to do
so pursuant to section 513 of the Marriage and Dissolution of
Marriage Act.
3. Case Law From Other States
Defendants cite numerous cases from other states and argue that
the “weight of authority” favors deciding this issue on the basis of
whether state law imposes a general legal obligation of postmajority
support on parents of disabled adult children. Because Illinois law
does not impose such a legal obligation, defendants argue that we
should follow the reasoning of these cases and conclude that
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postmajority damages may not be recovered in this case.
Plaintiffs also offer several decisions in wrongful-birth cases from
our sister states and urge us to adopt a judge-made exception to the
general rule of no duty of postmajority support in the context of a
wrongful-birth claim.
We see no need to summarize here all of the cited case law from
other states because our decision in Siemieniec provides the necessary
framework. As plaintiffs note, we cited several cases from other
states, noting that these states allow plaintiff parents in wrongful-birth
actions to recover “the extraordinary costs incurred as a result of the
child’s affliction after the child has reached the age of majority”
because “[t]hese courts reason that, under the common law, where a
child is incapable of supporting himself because of physical or
emotional disabilities, the parents’ obligation to support continues
beyond the child’s age of majority.” (Emphasis in original.)
Siemieniec, 117 Ill. 2d at 260. By implication, we were suggesting
that when the common law imposes a support obligation on parents,
damages for postmajority support are recoverable in a wrongful-birth
action. Conversely, where the common law does not impose such an
obligation, such damages may not be recovered.
This is consistent with defendants’ argument that, in general, in
states that “impose a statutory or common law obligation on parents
to care for dependent adult children, wrongful birth plaintiffs may
recover postmajority expenses as damages.” See, e.g., Viccaro v.
Milunsky, 551 N.E.2d 8, 11 (Mass. 1990) (parents are liable under
state law for “the support of an adult child if the child is physically or
mentally impaired and incapable of supporting himself”). However,
in states where state law establishes that a parent has no postmajority
duty of support, even to a disabled child, wrongful-birth plaintiffs
cannot recover such damages. See, e.g., Bani-Esraili v. Lerman, 505
N.E.2d 947, 948 (N.Y. 1987) (denying damages for postmajority
expenses in wrongful-birth case on basis that state statutes establish
that “a parent has no legal obligation to continue the support of a
child after majority”).
The case law from other states supports the framework we
suggested in Siemieniec. If the common law and statutory law of this
state make a plaintiff legally responsible for payment of certain
expenses, the tortfeasor who caused the harm is liable for those
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expenses. If the common law and statutory law of this state do not
impose such an obligation on a plaintiff, the tortfeasor cannot be held
liable for expenses that the plaintiff elects, but is not legally
obligated, to incur.
Because the common law and statutes of the State of Illinois do
not require the plaintiff parents to support their child after he reaches
the age of majority, they may not recover his extraordinary
postmajority expenses as an element of their damages. However, they
argue that public policy justifies a departure from the general rule.
4. Public Policy
Defendants argue that the public policy of this state is clear that
outside the context of divorce, where postmajority support is limited
to two contexts and is in the discretion of the court, parents are under
no legal obligation to support an adult child. Thus, they assert,
because the plaintiff parents in a wrongful-birth action are not legally
obligated to support a child who will be unable to support himself as
an adult, the tortfeasor whose negligence caused them to decide to
conceive the child or to continue the pregnancy cannot be said to have
caused the parents to bear this expense. Defendants also argue that
imposing these costs on providers of genetic and prenatal testing and
counseling services would discourage the development and provision
of genetic services and would create an anomaly in Illinois tort law
where parents may recover damages in a wrongful-birth action that
are not available to the child in a wrongful-life claim.
Plaintiffs argue that the public policy of the state is expressed in
the Illinois Constitution of 1970 and in the “central purpose” of tort
law to hold a tortfeasor responsible for foreseeable results of his
negligence.
The appellate court did not base its holding on public policy.
However, the concurring justice wrote in toto:
“I write to concur with the majority and to make one
succinct point: We believe very simply that it is the public
policy of this State to allow parents of a permanently disabled
child to allege and prove damages for the costs of caring for
the child after reaching majority. The parents have a right to
allege and seek to prove an action against tortfeasors, rather
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than have to assume personally the costs of providing for the
child’s lifelong needs. Moreover, we believe it is preferable
for the alleged tortfeasors to pay these costs, if found liable,
than for the taxpayers to be required to assist in paying them.
In short, if there is a tortfeasor, that person should bear the
burden he, she or it caused rather than the parents or society.
If we are incorrect about our assumption regarding the State’s
public policy, it will be remedied through the legal or political
process. Before that occurs, we think the approach we have
chosen is a rational one.” 391 Ill. App. 3d at 333 (Gallagher,
J., specially concurring).
This brief statement does not offer any authority in support of the
author’s opinion about what is or should be the public policy of the
State of Illinois. However, this court has noted on more than one
occasion that when we determine that our answer to a question of law
must be based, in whole or in part, on public policy, it is not our role
to make such policy. Rather, we “discern the public policy of the state
of Illinois as expressed in the constitution, statutes, and long-standing
case law.” In re Estate of Feinberg, 235 Ill. 2d 256, 265 (2009)
(citing O’Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill. 2d 333,
341 (1989)).
Article I, section 12, of the state constitution, known as the “open
courts provision” or the “certain remedies clause,” provides: “Every
person shall find a certain remedy in the laws for all injuries and
wrongs which he receives to his person, privacy, property or
reputation. He shall obtain justice by law, freely, completely, and
promptly.” Ill. Const. 1970, art. I, §12.
Prior to the adoption of the new constitution in 1970, the open
courts provision read: “Every person ought to find a certain remedy
in the laws for all injuries and wrongs which he may receive in his
person, property or reputation; he ought to obtain, by law, right and
justice freely, and without being obliged to purchase it, completely
and without denial, promptly, and without delay.” (Emphasis added.)
Ill. Const. 1870, art. II, §19.
Despite the change in wording from “ought to” to “shall,” this
court has held that this provision is merely an expression of
philosophy and does not mandate that a certain remedy be provided
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in any specific form. Segers v. Industrial Comm’n, 191 Ill. 2d 421,
435 (2000). The provision requires only that there be some remedy
for an alleged wrong. Berlin v. Nathan, 64 Ill. App. 3d 940, 950
(1978) (stating that section 12 of the new constitution “like its
predecessor,” article II, section 19, of the 1870 constitution, “is an
expression of a philosophy and not a mandate that a ‘certain remedy’
be provided in any specific form” (internal quotation marks omitted)
and that “[s]o long as some remedy for the alleged wrong exists,
section 12 does not mandate recognition of any new remedy”).
Plaintiffs have a remedy for the alleged wrong done to them by
defendants–an action for wrongful birth, recognized as a matter of
common law by this court in Siemieniec. The open courts provision
of our state constitution requires no more than this. The types of
damages available in such an action are determined by the basic
premise of tort law, which we also discussed in Siemieniec:
“The general rule of damages in a tort action is that the
wrongdoer is liable for all injuries resulting directly from the
wrongful acts, whether they could or should not have been
foreseen by him, provided the particular damages are the legal
and natural consequences of the wrongful act imputed to the
defendant, and are such as might reasonably have been
anticipated. Remote, contingent, or speculative damages do
not fall within this general rule. (See D. Dobbs, Remedies sec.
3.1 (1973); C. McCormick, Damages sec. 137 (1935).)”
Siemieniec, 117 Ill. 2d at 259.
Thus, the plaintiff parents in that case were entitled to recover the
damages that flowed from the defendants’ breach of duty, “that is,
only the extraordinary expenses that are attendant to the care and
treatment of the afflicted child,” and not “the expenses associated
with the raising of a normal, healthy child.” Id.
In effect, we were articulating the fundamental premise of tort
law, which is part of the long-standing public policy of this state, that
a tortfeasor is to be held liable for the harm that he causes, no more
and no less. Because the plaintiff parents intended to conceive and
bear a child and did so, it could not be said that the costs of childrearing in general were caused by the defendant’s negligence. Thus,
we limited the parents’ recovery to “the extraordinary expenses” they
would incur raising a child with hemophilia. Id. at 260.
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In the present case, the defendants have not caused the parents to
be responsible for supporting Timothy after he reaches the age of
majority. This is a burden that the parents intend to accept voluntarily.
Their willingness to do so cannot overcome the fundamental premise
that the defendant has not caused them to bear this burden.
In addition, if we were to hold wrongful-birth defendants liable
to parents for the child’s postmajority expenses, we would obscure
the distinction we made in Siemieniec between wrongful birth and
wrongful life, a distinction that the legislature has not seen fit to alter.
A child who is born with a genetic or congenital condition does
not have a cause of action in this state against a health care provider
whose breach of the standard of care “precluded an informed parental
decision to avoid his conception or birth.” Id. at 236. His life, while
burdened by his condition, is “as a matter of law, always preferable
to nonlife.” Id. at 239-40. We therefore rejected the premise that the
child has “the right to prove, if he can, what his unusual condition
will cost when he reaches majority.” Id. at 241.
In the ordinary medical negligence case alleging a prenatal or
neonatal injury, the child’s claim is that but for the defendant’s
negligence, he would have been born healthy. See Id. For example,
in Bauer v. Memorial Hospital, 377 Ill. App. 3d 895 (2007), the
defendant hospital was found liable to the infant and his parents for
failing to diagnose and treat the newborn’s hypoglycemia. The
appellate court stated that because parents are responsible for the
medical expenses of their minor children, the common law “gives
parents a cause of action against a tortfeasor who, by injuring their
child, caused them to incur the medical expenses.” Id. at 922. In this
case, however, the parents’ recovery was reduced by 30% based on
their contributory negligence.
In Bauer, it was undisputed that because of the effects of the
missed diagnosis and delayed treatment, the child would never be
self-supporting. Id. at 903-04. In an effort to reduce the amount of
damages for postmajority expenses by the amount of the parents’
contributory negligence, the hospital argued on appeal that the parents
would be obligated to support him even after the age of majority and
that, therefore, the damages for his future caretaking and medical
expenses belonged to the parents, not to the child. Id. at 922-23. The
appellate court disagreed, stating that the defendants “are responsible
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for the costs of [the child’s] postmajority caretaking and medical
expenses, which were caused by their negligence.” Id. at 923. Thus,
these damages belonged to the child and were recoverable in his
cause of action and the damages awarded to him could not be reduced
by his parents’ contributory negligence. Id.
The distinction between claims for wrongful life, medical
negligence causing injury to a child, and wrongful birth illustrates the
public policy of this state with regard to damages in tort. The injured
plaintiff is to be made whole and the defendant is to be held
responsible for all harm proximately caused by his negligence.
In the wrongful-life context, there is no cause of action because
the child, while burdened, cannot be said to have suffered a legal
wrong. Siemieniec, 117 Ill. 2d at 246. In the medical negligence
context, costs incurred during the injured child’s minority are
damages to the parents while costs incurred after the age of majority
are damages to the child himself. Bauer, 377 Ill. App. 3d at 923. In
the wrongful-birth context, the nature of the harm is not that the
defendant caused the child’s condition, but that the defendant
deprived the parents of the opportunity to make an informed decision.
The defendant is liable for all harms proximately caused to the
plaintiff parents, which does not include any expenditures they
voluntarily make for the support of their child as an adult.
We conclude that based on our constitution, statutes, and common
law, the public policy of the State of Illinois favors preserving this
distinction.
We turn to the question of damages for emotional distress.
B. Damages for Emotional Distress
Defendants next argue that the appellate court erred in holding
that plaintiffs stated a cognizable claim for negligent infliction of
emotional distress. According to defendants, the appellate court’s
decision runs counter to Siemieniec, which rejected the plaintiffs’
claim for emotional distress damages.
This court in Siemieniec, in assessing the plaintiffs’ emotional
distress claim, applied the zone-of-danger rule articulated in Rickey
v. Chicago Transit Authority, 98 Ill. 2d 546 (1983). Prior to Rickey,
recovery for negligently inflicted emotional distress was denied
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unless it was accompanied by a contemporaneous physical injury to
or impact on the plaintiff. Rickey, 98 Ill. 2d at 550. Rickey replaced
this “impact rule” with the zone-of-danger rule.
“Basically, under [the zone-of-danger rule] a bystander who
is in a zone of physical danger and who, because of the
defendant’s negligence, has reasonable fear for his own safety
is given a right of action for physical injury or illness resulting
from emotional distress. This rule does not require that the
bystander suffer a physical impact or injury at the time of the
negligent act, but it does require that he must have been in
such proximity to the accident in which the direct victim was
physically injured that there was a high risk to him of physical
impact. The bystander [in addition] must show physical injury
or illness as a result of the emotional distress caused by the
defendant’s negligence.” Rickey, 98 Ill. 2d at 555.
Siemieniec applied this rule and concluded the plaintiffs could not
satisfy it because there were “no allegations in the complaint from
which it can be said that the defendants’ alleged negligence in any
way endangered the parents of the impaired child.” Siemieniec, 117
Ill. 2d at 261.
Plaintiffs argue that their claim for negligent infliction of
emotional distress should not have been dismissed because they
adequately pleaded facts that, if taken as true, meet the zone-ofdanger test. Specifically, they claim that they are physically
endangered when caring for Timothy. He is unable to control his
upper body and as a result will strike and “head butt” his mother.
Older individuals with Angelman Syndrome often exhibit violent
behavior that can cause injury to themselves or others. Thus, as
Timothy becomes larger and stronger, instances of physical injury to
his parents are likely to become more serious. His parents assert that
as a result of being in this zone of danger as they care for their
disabled son and for other reasons, they suffer severe emotional
distress and that their distress is a foreseeable consequence of
defendants’ negligence.
In the alternative, plaintiffs urge us to either (1) determine that
because they are the “direct victims” of the tort of wrongful birth,
they are not bystanders and should not be held to the zone-of-danger
rule when they claim damages for their emotional distress or (2)
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overrule this portion of Siemieniec by recognizing an exception to the
zone-of-danger rule when wrongful-birth plaintiffs also plead
negligent infliction of emotional distress.
Defendants, in their reply brief, ask that the portion of the
plaintiffs’ brief arguing that they are “direct victims” of the tort of
wrongful birth be stricken because they did not make this argument
in the appellate court. We conclude that because they properly
preserved the issue of their ability to recover damages for emotional
distress in the appellate court, they may offer an alternative argument
in support of that issue as appellees in this court. For reasons that
follow, we agree with plaintiffs that they have stated a claim for
emotional distress damages as direct victims of the tort of wrongful
birth.
Plaintiffs’ second alternative argument implicates stare decisis
principles. The doctrine of stare decisis expresses the policy of the
courts to stand by precedents and not to disturb settled points. People
v. Colon, 225 Ill. 2d 125, 145 (2007); Vitro, 209 Ill. 2d at 81;
Wakulich, 203 Ill. 2d at 230. In other words, a question once
deliberately examined and decided should be considered as settled
and closed to further argument, so that the law will not change
erratically, but will develop in a principled, intelligible fashion.
Colon, 225 Ill. 2d at 146.
Stare decisis, however, is not an inexorable command. Vitro, 209
Ill. 2d at 82; Colon, 225 Ill. 2d at 146. “While adherence to the
doctrine of stare decisis is important to the stability of the law, ***
when doubts are raised in the minds of the court as to the correctness
of its decision, it is its duty to re-examine the question involved in the
case.” Doggett v. North American Life Insurance Co. of Chicago, 396
Ill. 354, 360-61 (1947). If it is clear the court has made a mistake, it
will not decline to correct it, even if the mistake has been reasserted
and acquiesced in for many years. Colon, 225 Ill. 2d at 146.
Nevertheless, this court will not depart from precedent merely
because it might have decided otherwise if the question were a new
one. Vitro, 209 Ill. 2d at 82; Colon, 225 Ill. 2d at 146. Moreover, any
departure from stare decisis must be specially justified, and prior
decisions should not be overruled absent good cause or compelling
reasons. Vitro, 209 Ill. 2d at 82; Colon, 225 Ill. 2d at 146. In general,
a settled rule of law that does not contravene a statute or
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constitutional principle should be followed unless doing so is likely
to result in serious detriment prejudicial to public interests. Colon,
225 Ill. 2d at 146; Vitro, 209 Ill. 2d at 82. Good cause to depart from
stare decisis also exists when governing decisions are unworkable or
badly reasoned. People v. Sharpe, 216 Ill. 2d 481, 520 (2005); Colon,
225 Ill. 2d at 146.
With these principles in mind, we address plaintiffs’ contention
that Siemieniec’s application of the zone-of-danger rule in a
wrongful-birth case is error.
As previously noted, the zone-of-danger rule was designed for a
different type of case, where the plaintiff’s theory of liability is the
negligent infliction of emotional distress. Rickey, the source of this
rule, exemplifies such a case. The plaintiff, Robert, who was eight
years old, was on a descending escalator with his five-year-old
brother, Richard, when Richard’s clothing became entangled in the
mechanism, choking him. Richard could not breathe for “a substantial
period of time.” Rickey, 98 Ill. 2d at 549. Robert, who apparently
suffered no impact or injury, alleged emotional distress as a result of
witnessing the accident that severely injured his brother.
In such cases, where the claim of emotional distress is
freestanding and not anchored to any other tort against the plaintiff,
courts have applied special restrictions such as the zone-of-danger
rule because of concerns regarding the possibility of fraudulent claims
or frivolous litigation. See Rickey, 98 Ill. 2d at 555.
However, these special restrictions have no logical bearing on a
wrongful-birth claim, where a tort has already been committed
against the parents. Wrongful-birth plaintiffs do not assert a
freestanding emotional distress claim, but merely assert emotional
distress as an element of damages for a personal tort. “For these
reasons, the physical manifestation and zone-of-danger rules offer no
occasion to reject mental distress damages in wrongful birth cases any
more than they would do so in the case of libel or invasion of
privacy.” 2 Dan B. Dobbs, Law of Remedies §8.2, at 414 (2d ed.
1993).
In Siemieniec, the plaintiffs clearly saw their emotional harm
claim in this light. They sought damages for emotional distress as “a
natural and foreseeable consequence of the injury they sustained,” a
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consequence which “should be included as an essential element in the
calculation of damages.” Siemieniec, 117 Ill. 2d at 260-61.
However, in addressing this claim, this court apparently viewed
it as a separate theory of tort liability–a freestanding claim of
negligent infliction of emotional distress– rather than as an element
of damages flowing from the wrongful-birth tort itself. A possible
explanation for this may lie in the questions certified by the circuit
court, which appeared to treat the parents’ claim for emotional
distress as a separate tort. However, whatever the source of the
misunderstanding, this was error.
Our error and similar errors by the courts of other states have
drawn sharp criticism. See 2 Dan B. Dobbs, Law of Remedies §8.2,
at 414 n.21 (2d ed. 1993) (citing Siemieniec and other wrongful-birth
cases that have denied emotional distress damages altogether, adding
that “[i]n some authorities the distinction between emotional distress
as damages and emotional distress as a freestanding tort seems to
have been overlooked” (emphasis in original)).
The nature of the error is evident when one considers that
damages for emotional distress are available to prevailing plaintiffs
in cases involving other personal torts such as defamation (see, e.g.,
Slovinski v. Elliott, 237 Ill. 2d 51 (2010)); medical negligence (see,
e.g., Cummings v. Jha, 394 Ill. App. 3d 439 (2009)); conversion (see,
e.g., Cruthis v. Firstar Bank, N.A., 354 Ill. App. 3d 1122 (2004)); and
misappropriation of identity (see, e.g., Petty v. Chrysler Corp., 343
Ill. App. 3d 815 (2003)). See also 2 Dan B. Dobbs, Law of Remedies
§8.2, at 413-14 (2d ed. 1993) (“When it comes to mental or emotional
distress, the usual rule allows free recovery of emotional distress
damages to any victim of a personal tort.”).
Thus, in the wrongful-birth context, the Florida Supreme Court
rejected application of the state’s “impact doctrine,” a hybrid of the
impact and zone-of-danger approaches, to wrongful-birth cases.
“[W]e are not certain that the impact doctrine ever was intended to be
applied to a tort such as wrongful birth.” Kush v. Lloyd, 616 So. 2d
415, 422 (Fla. 1992). The court noted that such an approach should
not be applied “where emotional damages are an additional ‘parasitic’
consequence of conduct that itself is a freestanding tort apart from
any emotional injury.” Kush, 616 So. 2d at 422. The court added that
the impact doctrine “also generally is inapplicable to recognized torts
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in which damages often are predominately [sic] emotional, such as
defamation or invasion of privacy.” Kush, 616 So. 2d at 422. The
court stated:
“There can be little doubt that emotional injury is more
likely to occur when negligent medical advice leads parents
to give birth to a severely impaired child than if someone
wrongfully calls them liars, accuses them of unchastity, or
subjects them to any other similar defamation. A defamation
may have little effect, may not be believed, might be ignored,
or could be reversed by trial publicity. But the fact of a child’s
serious congenital deformity may have a profound effect,
cannot be ignored, and at least in this case is irreversible.
Indeed, these parents went to considerable lengths to avoid
the precise injury they now have suffered. We conclude that
public policy requires that the impact doctrine not be applied
within the context of wrongful birth claims.” Kush, 616 So.
2d at 422-23.
See also Greco v. United States, 893 P.2d 345, 351 n.10 (Nev. 1995)
(the plaintiff “seeks to recover for a direct and personal injury, not
because of mental distress occasioned by an injury to [her child]”
(emphasis in original)); Naccash v. Burger, 290 S.E.2d 825, 831 (Va.
1982) (concluding plaintiffs’ emotional distress was “direct result of
wrongful conduct”; “it would be wholly unrealistic to say that the
[plaintiffs] were mere witnesses to the consequences of the tortious
conduct involved in this case”) (cited with approval in Rich v. Foye,
976 A.2d 819, 828 (Conn. Super. Ct. 2007)); Keel v. Banach, 624 So.
2d 1022, 1030 (Ala. 1993) (jury could conclude that defendants, in
failing to inform mother of possibility of giving birth to child with
severe congenital abnormalities, “directly deprived her and,
derivatively, her husband, of the option to accept or reject a parental
relationship with the child and thus caused them to experience mental
and emotional anguish upon their realization that they had given birth
to a child afflicted with severe multiple congenital abnormalities”).
In light of these considerations, we conclude that we erred in
Siemieniec in applying the zone-of-danger rule to wrongful-birth
plaintiffs’ claims for emotional distress. We overrule Siemieniec on
this point, and specifically hold that the zone-of-danger rule applies
only in cases where the plaintiff’s theory of liability is the negligent
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infliction of emotional distress. It does not apply where, as in a
wrongful-birth case, a tort has already been committed against the
plaintiffs and they assert emotional distress as an element of damages
for that tort.
We note that plaintiffs, in drafting their complaint, fashioned their
pleadings to meet the zone-of-danger test. Because we now reject that
test, plaintiffs should be allowed, on remand to the circuit court, to
amend their pleadings accordingly.
C. Statute of Limitations
Defendants maintain that the circuit court’s order of dismissal can
be affirmed on other grounds and, thus, that remand for consideration
of plaintiffs’ claim for emotional distress damages is not necessary.
Specifically, they argue the appellate court erred in declining to
consider their statute of limitations defense as an alternate ground for
affirming the circuit court’s judgment.
As previously noted, in 2006, while plaintiffs’ first amended
complaint was pending, defendants moved for summary judgment on
the ground that plaintiffs failed to bring suit against them within the
two-year limitations period set forth in section 13–212 of the Code of
Civil Procedure (735 ILCS 5/13–212 (West 2006)). The circuit court
denied the motion, reasoning, in part, that there was “at least a
question of fact” as to when the statute was triggered and the
limitations period began to run. Subsequently, in 2008, the circuit
court entered the order at issue in this case, dismissing plaintiffs’
third amended complaint with prejudice pursuant to section 2–615 of
the Code. Defendants raised the statute of limitations issue in the
appellate court, but the question was not addressed in the appellate
court’s opinion. Defendants included the issue as one of the “points
relied upon in seeking review” in their petition for leave to appeal.
Plaintiffs argue initially that defendants’ statute of limitations
defense is not properly before this court. Plaintiffs note that
defendants raised this defense in the circuit court on a motion for
summary judgment, which was denied. Plaintiffs cite the general rule
that the denial of a motion for summary judgment is not a final order
and is therefore not appealable. According to plaintiffs, the only issue
on appeal is the circuit court’s dismissal of their complaint under
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section 2–615.
Ordinarily, the denial of summary judgment is not appealable,
because such an order is interlocutory in nature. However, we have
recognized an exception to this rule in certain circumstances, as when
the parties have filed cross-motions for summary judgment and one
party’s motion is granted and the other party’s denied. Because the
order disposes of all issues in the case, review of the denial of
summary judgment may be had. In re Estate of Funk, 221 Ill. 2d 30,
85 (2006). Our appellate court has similarly concluded that the
propriety of the denial may be considered if the case is properly
before a reviewing court from a final judgment and no trial or hearing
has been conducted. DePluzer v. Village of Winnetka, 265 Ill. App.
3d 1061, 1064 (1994); La Salle National Bank v. Malik, 302 Ill. App.
3d 236, 247 (1999).
Here, the circuit court’s order dismissing plaintiffs’ third amended
complaint with prejudice was final and appealable. Because the
circuit court’s order disposed of all issues in the case, and because
defendants have properly preserved the issue at each stage of this
litigation, we reject plaintiffs’ argument that defendants’ statute of
limitations defense is not properly before us and, in the interest of
judicial economy, we review the issue. For the reasons that follow,
we hold that the circuit court correctly found that there existed a
question of material fact that precluded entry of summary judgment.
Section 13–212 provides, in pertinent part, that any tort action
arising out of patient care against a physician or hospital must be
brought within “2 years after the date on which the claimant knew, or
through the use of reasonable diligence should have known” of the
injury. 735 ILCS 5/13–212(a) (West 2006). Under the discovery rule,
“a cause of action accrues, and the limitations period begins to run,
when the party seeking relief knows or reasonably should know of an
injury and that it was wrongfully caused.” Feltmeier v. Feltmeier, 207
Ill. 2d 263, 285 (2003).
In the case at bar, defendants argue that plaintiffs knew or
reasonably should have known of their claim against defendants well
before September 7, 2002. According to defendants, the date of
discovery thus was more than two years before September 7, 2004,
the date plaintiffs sued defendants, and plaintiffs’ claim therefore was
time-barred under section 13–212. Plaintiffs counter that the
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discovery date was September 30, 2002, when Amy first learned that
the result of Brandon’s UBE3A sequence analysis was “abnormal.”
According to plaintiffs, this was “the earliest [they] could possibly
have discovered their cause of action.” Plaintiffs argue the date
defendants were sued, September 7, 2004, thus came within the twoyear limitations period.
As noted, the circuit court denied defendants’ motion, reasoning,
in part, that there was “at least a question of fact” as to when the
statute of limitations was triggered and the two-year period began to
run. Our review of the record persuades us the circuit court was
correct. “The time at which a party has or should have the requisite
knowledge under the discovery rule to maintain a cause of action is
ordinarily a question of fact.” Jackson Jordan, Inc. v. Leydig, Voit &
Mayer, 158 Ill. 2d 240, 250 (1994). Thus, summary judgment in this
case would be appropriate only if the undisputed facts allow for only
one conclusion: that more than two years elapsed between the time
which the Clarks knew or should have known of their injury and the
date on which they filed their lawsuit. See id. Because there was a
disputed question of material fact as to when the Clarks knew or
reasonably should have known of their injury, the circuit court
correctly denied defendants’ motion for summary judgment. See
Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63 (2007).
III. CONCLUSION
In sum, we affirm the judgment of the appellate court reversing
the circuit court’s dismissal of plaintiffs’ claims for negligent
infliction of emotional distress. We reverse that portion of the
appellate court’s judgment holding that plaintiffs may recover
damages for the postmajority expenses of caring for their son. We
also affirm the circuit court’s denial of defendants’ motion seeking
summary judgment under section 13–212. The cause is remanded to
the circuit court of Cook County for further proceedings in
consonance with this opinion.
Judgment affirmed in part and reversed in part;
cause remanded.
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JUSTICE FREEMAN, concurring in part and dissenting in part:
While I agree with part of today’s decision (slip op. at 24), I do
not agree with the court’s conclusion that the Clarks cannot recover
extraordinary medical expenses in this case. Whether a parent is
legally obligated to support a child past the age of 18 is irrelevant to
deciding whether a negligent doctor should be liable for postmajority
damages. The only relevant concern is whether tort law generally
should allow for parents who have been the victims of clear
negligence, as in this case, to recover the medical expenses generated
for the expenses they voluntarily will assume in order to continue to
care for their disabled child. I agree with the authority that says that
parents like the Clarks are entitled to all extraordinary medical and
educational costs for the child’s life expectancy as a consequence of
defendants’ negligence. I therefore respectfully dissent from that
portion of today’s opinion.
I
The court stresses today that the damage issue is a matter for the
legislature. The legislature may or may not take up the court’s
invitation, but the reasons given in the opinion are not any reason to
do so. The United States Supreme Court has observed that “[p]erhaps
no field of the law comes closer to the lives of so many families in
this country than does the law of negligence.” Tiller v. Atlantic Coast
Line R.R., 318 U.S. 54, 73 (1943). Negligence law is, by tradition, a
matter for the judiciary. Indeed, this court’s recognition in Siemieniec
v. Lutheran General Hospital, 117 Ill. 2d 230 (1987), of a claim for
medical malpractice in genetic counseling involved the application of
the doctrine of negligence. The determination of the scope of the
common law doctrine of negligence is within this court’s province.
“[J]udges rather than legislatures usually define what counts as a tort
and how compensation is to be measured.” 1 Dan B. Dobbs, The Law
of Torts §1 (2001). See also Renslow v. Mennonite Hospital, 67 Ill.
2d 348 (1977). If this court has the authority to recognize the claim
in the first instance, it likewise has the authority to determine its
character.
That is, in fact, what this court did in Siemieniec. Some courts
have criticized the “extraordinary costs rule,” adopted by this court in
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Siemieniec, i.e., parents in so-called “wrongful birth” cases recover
only the extraordinary medical and educational costs attributable to
the birth defect, and not the ordinary costs associated with childrearing. The criticism stems from the fact that the rule “departs from
traditional principles of tort damages.” Smith v. Cote, 513 A.2d 341,
349 (N.H. 1986). The rule “represents an application in a tort context
of the expectancy rule of damages employed in a breach of contract
case.” Id. While some courts have not allowed damages on account
of this (see, e.g., Rieck v. Medical Protective Co., 219 N.W.2d 242
(Wis. 1974)), other courts have, noting that it is within the power of
the judiciary to shape the law of negligence in order to do justice
between parties. See Smith, 513 A.2d at 349 (noting need to find a
rule that will protect defendants as well as will compensate parents);
see also Deana A. Pollard, Wrongful Analysis in Wrongful Life
Jurisprudence, 55 Ala. L. Rev. 327 (2004) (suggesting that the
application of the expectancy rule, without more, results in
undercompensation to the victims of this form of malpractice).
Today, we pick up where Siemieniec left off: What is the extent
of the extraordinary medical and educational costs attributable to the
birth defect that can be recovered in these cases?3 While this court in
Siemieniec acknowledged one popular rationale to use to answer the
question by pointing to the minority/majority analysis, it is not the
only rationale to develop in this area in the 23 years since Siemieniec
was decided.
The injury complained of is the alleged failure of defendants to
properly inform the Clarks that their eldest son’s Angelman
Syndrome was the result of a genetic defect passed through his
mother and therefore was not an accident of nature. Had the Clarks
been accurately informed of this fact by defendants, it would have
weighed in their decision whether to exercise their constitutional right
3
It bears noting that since this court’s decision in Siemieniec, the
General Assembly has not enacted any specific legislation in this area. This
inaction stands in stark contrast to action taken by legislators in other
states, which have enacted statutes specifically prohibiting claims for
wrongful birth. Note, The Right to Recovery for Emotional Distress Arising
from a Claim for Wrongful Birth, 32 Am. J. Trial Advoc. 143, 157 & n.108
(2008).
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to use contraceptives in order to limit the size of their family.
Griswold v. Connecticut, 381 U.S. 479, 485 (1965). Importantly, this
constitutional right protects a “distinctively personal interest” because
it “involves profound moral and personal issues” that only the patient
can make. Canesi v. Wilson, 730 A.2d 895 (N.J. 1999). Thus, the
injury in this particular form of medical malpractice is the parents’
lost opportunity to make the personal decision in weighing the
consequences of whether to give birth to a child who might have
permanently disabling physical and mental birth defects. The damage
sustained is all the foreseeable consequences proximately caused by
that injury.
In analyzing this claim, it is important to keep in mind that the
alleged cause of action is based on the failure to inform the Clarks of
the fact that their eldest son’s Angelman Syndrome was genetically
caused and of the consequences resulting from conception in light of
that knowledge. What is being claimed, then, is that the medical
providers, through their negligence, deprived the Clarks of the right
to accept or reject a parental relationship, as they would define that
relationship. Smith, 513 A.2d at 348. Generally, the deprivation of
that right by the negligent misconduct of another has been held to
create a cause of action in the parents. Schroeder v. Perkel, 432 A.2d
834 (N.J. 1981); Naccash v. Burger, 290 S.E.2d 825, 830 (Va. 1982).
Importantly, the Clarks sought genetic counseling because they
were already the parents of one child with Angelman Syndrome. They
knew that an additional child diagnosed with Angelman Syndrome
would never be able to care for himself in any way at any age. They
knew that another pregnancy which led to the birth of another child
with Angelman Syndrome would have serious consequences, not just
on that child, but on them and their eldest son. Such a person would
require a lifetime of extraordinary medical expenses and would need
extraordinary care in order to tend to his or her daily needs. This is
precisely why the Clarks sought genetic counseling. Defendants’
negligence served to deprive the Clarks of an informed choice of
whether they wished to undertake the heavy obligations in rearing a
second child with such a debilitating condition. See Wolf
Wolfensberger & Frank J. Menolascino, A Theoretical Framework
for the Management of Parents of the Mentally Retarded, in
Psychiatric Approaches to Mental Retardation 475 (Menolascino ed.
-35-
1970). Had the Clarks received accurate medical information in a
timely fashion, they might have concluded that the life of a future
child, even one with Angelman Syndrome, was worth the cost of
assuming the associated burdens and expenditures, but this is unlikely
since the point of genetic counseling was to avoid the possibility.
Nevertheless, some individuals “confronted by tragedy respond
magnificently and become exemplary parents [while] others do not.
See, e.g., Becker v. Schwartz, 386 N.E.2d 807 (N.Y. Ct. App. 1978)
in which the parents subsequently put their mongoloid child up for
adoption.” Schroeder v. Perkel, 432 A.2d at 845 (Handler, J.,
concurring in part, dissenting in part). But the real injury to the Clarks
was being deprived of the ability to weigh the pros and cons of having
to rear a second child who will eventually become an adult
dependent.4
The Clarks’ injury does not cease to exist nor do the
consequences of it disappear the day Timothy turns 18. Timothy will
never become emancipated; he will never be able to care for himself.
The Clarks therefore bear the additional burden of knowing that
Timothy will never be able to make for himself any of the decisions
needed for his day-to-day care and survival, and will not be able to
look after his own best interests. It has been recognized that when
parents are denied the opportunity to make the decision denied here,
important personal interests are impaired, including the interest in
preserving personal autonomy with respect to their family. Smith, 513
A.2d at 348.5
As the Seventh Circuit Court Appeals has recognized, cases such
4
Illinois law defines a “dependent” as a person who is “unable to
maintain himself and is likely to become a public charge.” 755 ILCS
5/1–2.06 (West 2008).
5
In my view, Timothy suffers injury, too, not from being given life or
even from being born with a disabling impairment, but rather from being
part of a family unit that, due to defendants’ negligence, was unprepared,
be it financially or emotionally or both, to deal with the consequences
stemming from his birth.
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as this one, termed “wrongful birth” actions,”6 sound in negligence
and are “little different from an ordinary medical malpractice action.”
Robak v. United States, 658 F.2d 471, 476 (7th Cir. 1981). As such,
it involves a “failure by a physician to meet a required standard of
care, which resulted in specific damages to the plaintiffs.” Id. It is a
recognized principle of tort law to afford compensation for injuries
sustained by one person as the result of the conduct of another. W.
Page Keeton, Prosser and Keeton on Torts §2, at 6 (5th ed. 1984).
Illinois courts have recognized that when seeking to restore a plaintiff
to the wholeness plaintiff had before the commission of a tort,
specific damages rules should not be inflexibly applied if substantial
justice would not be accomplished. Wolf v. Bueser, 279 Ill. App. 3d
217 (1996). A defendant is liable for all reasonably anticipated
injuries resulting from a wrongful act. Haudrich v. Howmedica, Inc.,
169 Ill. 2d 525 (1996).
It was foreseeable that as a result of defendants’ negligence, the
Clarks, a couple of child-bearing age, would conceive a second child
who would incur lifelong medical expenses. All of the consequences
that the Clarks sought to avoid in fact did come to pass here. They
conceived and had a second son who suffers from the same incurable
disease that his brother has. The disease will prevent him from taking
care of himself in any way. Having not been given the choice, prior
to Timothy’s conception, of voluntarily assuming the burdens of
having a second son with Angelman Syndrome, the Clarks have
alleged that they will continue to care for Timothy’s care “into his
majority.” This means more than voluntarily paying Timothy’s
extraordinary medical and educational expenses. It demonstrates the
Clarks’ intent to have a say in the care and nurture of their impaired
son. It means they will not abandon him and are committed to caring
6
The terms “wrongful life,” “wrongful birth” and “wrongful pregnancy”
(also termed “wrongful conception”) are seen by some as “a play on the
statutory tort of ‘wrongful death.’ ” Alexander M. Capron, Tort Liability
in Genetic Counseling, 79 Col. L. Rev. 618, 634 n.62 (1979). The use of
such terms, however, has only “spawn[ed] confusion” (id.), the effect of
which has “distort[ed] or impair[ed] judicial vision.” Greco v. United
States, 893 P.2d 345, 348 n.5 (1995). See also Viccaro v. Milunsky, 551
N.E.2d 8, 9 n.3 (Mass. 1990).
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for his best interests. This is significant in assessing the consequences
of defendants’ negligence.
It is beyond question that Timothy’s condition will not improve
once he achieves the age of majority. He will still have Angelman
Syndrome. Timothy’s condition will not magically disappear after the
age of 18. Thus, decisions made by his parents during his minority
will affect what happens to him after the age of 18. As an example,
suppose the Clarks are presented with, during Timothy’s minority, a
medical treatment plan that will continue past the age of majority and
is in Timothy’s best interests to undertake? Are the Clarks foreclosed
from acting in a certain way because they will not be able, financially,
to continue the treatment once Timothy reaches the age of 18? More
to the point, if Timothy is to be made a ward of the state, will the
Clarks lose their ability to make decisions for Timothy that they, as
his blood relatives, believe are in his best interests? The Clarks find
themselves in this conundrum as the direct result of defendants’
negligence to them, and it constitutes a further legal injury to them.
The Clarks should not be concerned about where the money will
come from in future when making Timothy’s medical decisions
during his minority. The only way to compensate for this injury is to
allow the Clarks to recover the extraordinary medical and educational
costs for however long Timothy is expected to live.
It is for this reason that the court’s minority/postmajority analysis
is a faulty premise. Initially, it completely overlooks the fact that the
parents of a minor disabled child are free to give up the child up for
adoption or otherwise terminate their legal, parental obligation.
Unless specific steps are taken to secure the funds in trust, parents are
free to use the funds in ways that often are not in the best interests of
the child. See Greco v. United States, 893 P.2d 345, 352 (Nev. 1995);
Arche v. United States, 798 P.2d 477, 486 (Kan. 1990). Secondly, it
overlooks the fact, noted above, that no material difference in the
condition will occur at the age of majority. The Florida Supreme
Court recognized this and, as a result, held that a parents’ claim for
extraordinary damages is not dependent “on any future parental duty
owed *** after [the child] reaches majority.” (Emphasis in original.)
Kush v. Lloyd, 616 So. 2d 415, 424 (Fla. 1992). Such a rule best
preserves the parents’ present role as “guardians of the best interests
of an impaired child.” Id. It bears repeating that the parents would not
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be faced with these types of critical-care decisions had the defendants
not withheld material information that they were dutybound to give
to them.7
The normal measure of damages for the commission of a tort is
all damages that are the proximate result of the tortfeasor’s
negligence. Timothy’s birth and all extraordinary expenses resulting
from it were the proximate result of defendant’s negligence. Put
another way, but for defendants’ breach of duty to properly advise the
Clarks, they would not have been put in the position they now are in:
having a second child with Angelman Syndrome who will never be
able to care for himself and will never become emancipated and for
whom they will need to make critical decisions for the future. Had the
Clarks been given the right to decide, with accurate information,
whether to risk conception, they would have weighed not only how
that decision would affect that second child, but also how a second
child would affect their current family, both in terms of financial and
emotional commitments. The only way to compensate them fully and
fairly is to allow them to recover the extraordinary medical and
educational costs that Timothy will need for the duration of his life
expectancy. Such an award satisfies the purpose of tort damages
because it serves to compensate the victims, deter negligence, and
encourage due care. See Siemieniec, 117 Ill. 2d at 258. In my view,
the Clarks should be allowed to recover all extraordinary expenses
caused by the impairing condition for the duration of the child’s life
expectancy. Justice strongly favors this recognition, and I can find no
countervailing policy to hold otherwise.
One final observation needs to be made with respect to how such
extraordinary damages should be managed. Given the procedural
posture of this case, we have no way of knowing how long Timothy
will live. He may not survive his minority. Any award made in these
types of cases should be placed in a reversionary trust, whether the
7
Other courts have noted that by recognizing the parents’ right to
recover all extraordinary medical and educational costs for the child’s
lifetime in the parents’ cause of action, they need not address the more
difficult questions posed by wrongful-life causes of action since any reward
to the child would be duplicative of that given to the parents. See Rich v.
Foye, 976 A.2d 819 (Conn. 2007); Smith, 513 A.2d at 354.
-39-
reward be one limited to the minority of the child or, as I suggest, for
the lifetime of the child, however long it is proven at trial to be.
Under such a trust, the money would be disbursed as needed to pay
for the costs of the impaired person. Upon death, the remainder, if
any, would be returned to the defendant. This merits attention for two
primary reasons. First, it assures the impaired individual will be
adequately cared for and, secondly, it assures that, if the impaired
individual dies before reaching majority or the age of his life
expectancy, the parents do not receive a windfall. The use of such
trusts have been cited with approval by other courts. See Robak v.
United States, 503 F. Supp. 982 (N.D. Ill. 1980); Kush, 616 So. 2d at
424.
II
Rather than undertake an analysis that assesses the true nature of
the injury suffered by the Clarks and its consequences, the court
employs a contradictory statutory analysis to hold that the parents
cannot recover extraordinary expenses incurred past the age of
majority. The primary statute relied upon is a provision from the
Public Aid Code which obligates parents to pay for only the support
of a child under 18 years old. Essentially, because the Clarks are, as
one court has described, “free to bid their children a fiscal farewell at
age 18” (Childers v. Childers, 552 P.2d 83, 85 (Wash. App. 1976)),
they cannot be held legally responsible for any of the extraordinary
medical expenses necessary for Timothy’s care past the age of
majority and thus cannot recover such damages from defendants.
I do not see how this section of the Public Aid Code applies here.
Those parents who receive state aid are required to reimburse the
state for such services. To the extent that Timothy may ultimately
receive benefits from state aid agencies, such agencies are empowered
to seek reasonable compensation from beneficiaries who have
sufficient financial means. In any event, as I demonstrated above,
defendants’ liability to the Clarks is not dependent upon the parents’
liability for the expenses, but on the parents’ status as Timothy’s
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guardians.8
Parenthetically, I note that in determining the Public Aid Code
applies in this case, the court asks, in one of its many “what if”
questions: “will that child have a claim on his parents’ estate to the
disadvantage of nondisabled siblings?” Slip op. at 18. In fact, the
child would have a claim, not over the “parents’ estate,” but on the
surviving parent’s estate under the Probate Act because Timothy is a
dependent under the Act. See 755 ILCS 5/5–15–2 (West 2008).
Indeed, the court’s view of section 10–2 of the Public Aid Code
renders its construction of section 513 of the Illinois Marriage and
Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/513 (West
2006)) contradictory at best and unconstitutional at worst. The court
acknowledges that under this statute, parents may be required to
provide support for a disabled adult child. Section 513(a)(1), which
the appellate court below relied on in concluding wrongful-birth
plaintiffs could recover postmajority damages, provides:
“(a) The court may award sums of money out of the
property and income of either or both parties or the estate of
a deceased parent, as equity may require, for the support of
8
While the Public Aid Code speaks of parental liability ending at the age
of 18, other statutes reveal that the General Assembly’s view of the parental
obligation is not static. Section 12–21 of the Criminal Code of 1961, for
example, imposes criminal liability for failure to provide proper care for a
disabled person. 720 ILCS 5/12–21 (West 2008). Moreover, under the
federal Health Care Reform Bill, Congress has required that parents keep
their dependent children on their insurance policies for ages that go beyond
18. Illinois has already enacted legislation which implements the
Congressional mandate. 215 ILCS 5/356z.12 (West 2008). These divergent
expressions of legislative intent in this area further underscore the fallacy
in analyzing the damages question in terms of minority/majority. Tending
to family members who are unable to take care of themselves has long been
seen as exemplary in the eyes of both Congress and the General Assembly.
In Illinois, the parents of a disabled person who are the person’s custodial
caretakers are entitled to make a claim against the estate of such a person
under the Probate Act. 755 ILCS 5/18–1.1 (West 2008). Those who provide
care for disabled adults are entitled to federal and State tax breaks. 26
U.S.C. §§22, 152. These types of provisions demonstrate a public policy
that supports, not deters, family unity in dealing with disease and aging.
-41-
the child or children of the parties who have attained majority
in the following instances:
(1) When the child is mentally or physically disabled
and not otherwise emancipated, an application for support
may be made before or after the child has attained
majority.” 750 ILCS 5/513(a)(1) (West 2006).
The court today concludes that section 513(a)(1), as well as section
513(a)(2), which deals with postmajority educational expenses, do not
apply beyond the divorce context, stating:
“[T]he clear intent of sections 513(a)(1) and (a)(2) is to
provide the child of divorced parents who is unable to support
himself due to a disability or who seeks higher education with
the standard of living he would have enjoyed had his family
remained intact.” Slip op. at 17.
However, if there is, as the court asserts, no postmajority support
obligation for both parents, under the Public Aid Code, i.e., an intact
family situation, then there can be no such obligation in the divorce
situation. Divorce proceedings cannot create a greater obligation on
the parents individually than there was originally. Moreover, if
divorced parents may be required to provide support which married
parents have no obligation to provide, this presents serious, potential
constitutional questions concerning both equal protection and due
process.
The court goes on to state:
“Plaintiffs’ brief notes that they are presently separated
and could, at some future date, divorce, and one of them
might seek support for Brandon and Timothy from the other
under section 513(a)(1). This would be an application of the
statute in the manner the legislature intended–to preserve, as
much as possible, the benefits of an intact family for the
children of divorce.” Slip op. at 17.
This construction of section 513 is such that the court seems to be
encouraging divorce as the way around its ruling. The court’s
construction of the statute actually encourages a divorce in such
situations. The suggestion, callous as it is in the face of the tragedy
this family has endured, unsurprisingly contravenes the legislative
intent behind the Marriage Act. Specifically, our General Assembly
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has directed that the provisions of the Marriage Act are to be
“liberally construed and applied to promote its underlying purposes,”
which include “strengthen[ing] and preserv[ing] the integrity of
marriage and safeguard[ing] family relationships.” 750 ILCS 5/102(2)
(West 2006).
III
In discussing the issue of damages in cases such as this, more than
one court has noted that “law is more than an exercise in logic and
logical analysis, although essential to a system of ordered justice,
should not become an instrument of injustice.” Procanik by Procanik
v. Cillo, 478 A.2d 762 (N.J. 1984); Turpin v. Sortini, 643 P.2d 954,
965 (Cal. 1982). If the state of the law in Illinois is, in fact, what the
court holds it to be, then it may be high time that this court reconsider
its refusal, in Siemieniec to recognize so-called “wrongful-life”
claims.
In explaining its rejection of wrongful life, the court noted that
most courts in other jurisdictions had reached the same result. One
reason is the general unwillingness to hold that a child can recover
damages for achieving life:
“The threshold problem has been the assertion by the infant
plaintiffs not that they should not have been born without
defects, but that they should not have been born at all. The
essence of the infant’s cause of action is that the negligent
conduct of the defendants deprived the child’s mother from
obtaining an abortion which would have terminated its
existence. [Believing] that human life, no matter how
burdened, is, as a matter of law, always preferable to nonlife,
the courts have been reluctant to find that the infant has
suffered a legally cognizable injury by being born with a
congenital or genetic impairment as opposed to not being
born at all.” Siemieniec, 117 Ill. 2d at 239-40.
A related problem is the difficulty of measuring appropriate damages,
which involves a calculation “dependent upon the relative benefits of
an impaired life to no life at all, ‘[a] comparison the law is not
equipped to make.’ ” Id. at 240 (quoting Becker v. Schwartz, 386
N.E.2d 807, 812 (N.Y. 1978)).
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This court also emphasized “the preciousness and sanctity of
human life” as a basis for rejecting wrongful-life claims. It agreed
with those courts which “have reasoned that recognizing a duty to the
unborn child to prevent his birth with defects represents a ‘disavowal’
of the sanctity of life. Such a disavowal of life offends society’s
deeply rooted belief that life, in whatever condition, is more precious
than nonexistence.” Siemieniec, 117 Ill. 2d at 250. The court quoted
the Supreme Court of Idaho:
“Basic to our culture is the precept that life is precious. As a
society, therefore, our laws have as their driving force the
purpose of protecting, preserving and improving the quality
of human existence. To recognize wrongful life as a tort
would do violence to that purpose and is completely
contradictory to the belief that life is precious.” Blake v. Cruz,
698 P.2d 315, 322 (Idaho 1984) (quoted in Siemieniec, 117
Ill. 2d at 250).
Pointing to Illinois’ “strong public policy of preserving the sanctity
of human life,” the court stated: “To recognize that [a child] has a
fundamental right not to be born would thus undermine this
legislatively expressed policy favoring childbirth over abortion.”
Siemieniec, 117 Ill. 2d at 249.
This policy regarding the sanctity of human life remains in effect
in Illinois. Siemieniec has not been overruled on this point. However,
a “high regard for the sanctity of life,” however noble sounding on
paper, means nothing if it not honored in “real life.” A court that
embraces this as its public policy should not ignore the needs of the
living nor should it allow those who are negligent to rely on the
public to foot the bill when a child born as a result of that negligence
reaches the age of majority. The Clarks’ complaint alleges, in support
of their claim for postmajority damages:
“Timothy *** is and always will be mentally disabled.
Angelman Syndrome is a permanent genetic disorder with no
chance of ever being cured. Timothy *** has no chance of
leading an independent life as an adult or being emancipated.
As such, Timothy *** is now a disabled minor and after he
turns 18 he will be a disabled adult. As a disabled adult,
Timothy *** will not be able to care for himself in any way
and will require substantial sums of money to sustain his life.”
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The court holds today that the Clarks may not recover any of these
“substantial sums” from defendants. As a result, they will be left to
shoulder these expenses on their own, or, more likely, will be forced
to place Timothy in the care of the state, possibly away from his
family. Either way, the effect on Timothy’s quality of life, already
burdened with severe disabilities, undoubtedly will be negative.
Ironically, this unfortunate result arises, in large part, from
Siemieniec’s regard for the sanctity of human life, an important basis
for rejecting wrongful-life claims. But placing Timothy and his
parents in such a predicament hardly demonstrates a high regard for
the preciousness and sanctity of human life. Nor does it further the
purpose of “protecting, preserving and improving the quality of
human existence” (Blake, 698 P.2d at 322). If such a predicament is
the inevitable result of Siemieniec’s rejection of wrongful life,
perhaps this decision should be re-examined.
As one legal commentator has recognized, the above scenario
“may leave the real victim, the newly emancipated disabled
person with little or no ability to earn even minimal wages,
without compensation, relegating him to a state institution
despite the possibility that he could lead an independent life
with sufficient financial resources. Thus, recognizing
wrongful birth but not wrongful life may seriously
undercompensate for the damages caused by the malpractice,
shifting the financial responsibility onto the taxpayers when
parental responsibility ceases upon emancipation.” Deana A.
Pollard, Wrongful Analysis in Wrongful Life Jurisprudence,
55 Ala. L. Rev. 327, 367-68 (2004).
Justice Gallagher, writing separately in the appellate court, made a
similar point, though couched in terms of a wrongful-birth action
rather than one for wrongful life. The appellate court, of course, was
bound to follow Siemieniec’s rejection of wrongful life.
“We believe very simply that it is the public policy of this
State to allow parents of a permanently disabled child to
allege and prove damages for the costs of caring for the child
after reaching majority. The parents have a right to allege and
seek to prove an action against tortfeasors, rather than have to
assume personally the costs of providing for the child’s
lifelong needs. Moreover, we believe it is preferable for the
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alleged tortfeasors to pay these costs if found liable, than for
the taxpayers to be required to assist in paying them.” 391 Ill.
App. 3d at 333 (Gallagher, J., specially concurring).
As I noted at the outset of this opinion, the court stresses the need for
legislative action in this area. It is my belief that legislative action is
necessary in light of the court’s analysis of the injury and its attendant
damages in cases such as this. It is my sincere hope that the General
Assembly will look into this area of the law and provide the necessary
redress for future plaintiffs who are put into the situation the Clarks
find themselves in through no fault of their own.
I have suggested in Part I of this opinion a judicious way to
compensate plaintiffs that is compatible with normal tort principles.
This includes the use of a reversionary trust that would ensure both
justice as well as fairness to all involved: the victimized parents, the
victimized child, and the tortfeasor. Nothing in today’s opinion
indicates that my suggestions contravene in any way any public policy
of this state. Although the medical profession may have let down the
Clarks, Illinois’ legal system need not be allowed to do the same.
In sum, I would allow the Clarks to recover as damages for
negligence in this medical malpractice action all extraordinary
expenses for Timothy’s care in his lifetime. I base this not on any
legal duty of the parents to support Timothy past majority, but on the
parents’ status as his current guardians to provide for his care.
I do agree with the court’s decision to overrule that portion of
Siemieniec which erroneously applied the so-called “zone of danger”
rule to defeat claims for emotional distress arising from negligence in
genetic testing. I agree that the rationale used in Siemieniec was
inapplicable to the negligence at issue in this case and join in that
portion of today’s opinion. Ironically, the court relies strongly on
Kush v. Lloyd, the same Florida Supreme Court case that I rely on in
answering the damages question. I believe Kush, which addressed
facts remarkably similar to those here, is well reasoned on all of the
complex issues presented in these types of medical malpractice cases.
I also agree with the court’s resolution of the statute of limitations
issue. Accordingly, I join in that portion of today’s opinion as well.
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