Williams v. University of Chicago Hospitals
Annotate this Case
Williams v. University of Chicago Hospitals, No. 81619
(10/19/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 81619--Agenda 16--May 1997.
ALICE WILLIAMS et al., Appellants, v. UNIVERSITY OF CHICAGO
HOSPITALS et al., Appellees.
Opinion filed October 23, 1997.
JUSTICE MILLER delivered the opinion of the court:
The plaintiffs, Alice and Jerry Williams, who are husband and wife,
brought the present action in the circuit court of Cook County seeking
compensation for the extraordinary expenses of raising a child who was born
following a failed sterilization operation performed on Mrs. Williams. The
plaintiffs allege that the child has attention deficit hyperactivity disorder, a
congenital condition, which will require him to receive psychological treatment
and special educational training in the future. Ruling on two pretrial motions, the
trial judge concluded that the plaintiffs could recover the extraordinary expenses
they will incur in treating their son's condition but could not present certain
testimony describing educational needs he will have. The judge certified those two
questions for interlocutory appeal under Supreme Court Rule 308. The appellate
court held that the plaintiffs could not recover the extraordinary child-rearing
expenses they seek; with that determination the appellate court found it
unnecessary to resolve the second certified question. 281 Ill. App. 3d 1057. We
allowed the plaintiffs' petition for leave to appeal (155 Ill. 2d R. 315(a)), and we
now affirm the judgment of the appellate court.
The procedural history of this case requires only a brief summary.
According to the plaintiffs' fourth amended complaint, Mrs. Williams underwent
a tubal ligation at the University of Chicago Hospitals in July 1984. The complaint
alleges that her medical history included a possible ectopic pregnancy in 1979, a
stillborn child in 1982, a premature birth in 1984, and "at least one hyperactive
and learning disabled child." Defendant Dr. Lane Mercer performed the
sterilization procedure, and the plaintiff saw Dr. Mercer and, later, defendant Dr.
Ann Zielinski, over the course of the next seven years. During that time, at
subsequent appointments, the defendants never informed Mrs. Williams that the
tubal ligation was other than successful. Following a laparoscopy performed in
1988 by Dr. Mercer and Dr. Zielinski, Mrs. Williams was told that the devices
used in the procedure were properly placed. Mrs. Williams learned in May 1991
that she was pregnant, however, and she gave birth in October 1991 to the child
who is the subject of the instant appeal, Emmanuel. According to the complaint,
Emmanuel has attention deficit hyperactivity disorder and will require
psychological treatment and special educational training in the years ahead. The
plaintiffs brought the present negligence action against the University of Chicago
Hospitals and Drs. Mercer and Zielinski, seeking recovery of those extraordinary
expenses.
The origins of this appeal lie in certain pretrial rulings made by the
trial judge. Before trial, the defendants filed motions in limine seeking to limit the
evidence that could be introduced by the plaintiffs. Although the motions are not
included in the record on appeal, the record does contain transcripts of the
hearings on the motions. Following argument by the parties, the trial judge
concluded that the plaintiffs could recover damages for the extraordinary costs
they will incur as a result of the child's condition. The trial judge also ruled,
however, that the plaintiffs could not present expert testimony regarding certain
educational services that the child will require, in light of the state's constitutional
duty to provide a free public education to children.
At the parties' request, the trial judge certified the following two
questions for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.
2d R. 308):
"[1] Do the parents of a child born following a
failed tubal ligation have a cause of action for special
damages against the treating physicians and hospital for the
extraordinary psychological and/or educational expenses
which may be incurred in raising their child, where the
complaint alleges that Mrs. Williams' medical history
included a hyperactive son by another father, but there are
no allegations or proof that the Defendants proximately
caused Emmanuel Williams' Attention Deficit Hyperactivity
Disorder?
[2] Where plaintiff[s'] expert testifies that the public
school will more likely than not fail to provide the
appropriate special education, special therapy or mental
treatment, should the plaintiff[s] be allowed to present
evidence, as part of their damages, showing the future
extraordinary educational expenses of the abnormal child in
a wrongful pregnancy action?"
The appellate court accepted the case for review (155 Ill. 2d R.
308(a)) and answered the first question in the negative. 281 Ill. App. 3d 1057. The
appellate court believed that the defendants' alleged negligence was not the
proximate cause of the injury complained of, and the court therefore concluded
that the plaintiffs could not recover from the defendants the extraordinary costs
of raising the child at issue in this case. The court's decision rendered moot the
second question certified by the trial judge. We granted the plaintiffs' petition for
leave to appeal (155 Ill. 2d R. 315(a)), and we later allowed the Illinois Trial
Lawyers' Association and the Illinois Association of Defense Trial Counsel to
submit briefs as amici curiae (155 Ill. 2d R. 345(a)).
It will be helpful at the outset to clarify the various causes of action
that have previously been asserted by parents and children for birth-related torts.
An action for "wrongful pregnancy" or, as it has also been termed, "wrongful
conception"--the action involved here--may be brought by parents following a
negligently performed sterilization procedure. In an action for wrongful pregnancy,
the parents seek to recover compensation for the expenses of the pregnancy they
sought to avoid. Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 256
(1987). This court noted in Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983),
that parents bringing such an action are generally permitted to recover damages
for the cost of the unsuccessful operation, pain and suffering, any medical
complications caused by the pregnancy, the costs of the child's delivery, lost
wages, and loss of consortium. The recovery of those items is not at issue here.
In contrast to those damages, however, Cockrum held that parents may not be
awarded the expenses of raising a normal, healthy child born following the
negligently performed procedure.
An action for "wrongful birth," a distinct cause of action, refers to
a suit brought by parents who allege that they would not have conceived a child
or carried one to term if it had not been for the defendant's negligence in
"prenatal testing, genetic prognosticating, or counseling parents as to the likelihood
of giving birth to a physically or mentally impaired child." Siemieniec, 117 Ill. 2d
at 235. In Siemieniec, parents who alleged that they received incorrect information
regarding the likelihood that a child conceived by them would have hemophilia
were allowed to recover "the extraordinary expenses--medical, hospital,
institutional, educational and otherwise--which are necessary to properly manage
and treat the congenital or genetic disorder." Siemieniec, 117 Ill. 2d at 260.
Finally, "wrongful life" is the term used to describe an action
asserted by a parent or guardian on behalf of a minor in which the child seeks
compensation for the failure to give his or her parents proper advice regarding the
child's congenital condition. Siemieniec, 117 Ill. 2d at 236. In Goldberg v. Ruskin,
113 Ill. 2d 482, 486 (1986), this court refused to recognize an action for wrongful
life, noting the nearly universal rejection by courts of a child's recovery of general
damages under a wrongful-life theory, a result founded "on the value of life and
the inherent difficulty of ascertaining a cognizable injury for which damages may
be meaningfully awarded." Siemieniec later reaffirmed Goldberg by denying the
child's separate wrongful-life claim in that case. Siemieniec, 117 Ill. 2d at 238-53.
The present appeal involves only an action for wrongful pregnancy,
brought by the parents of a child born after an unsuccessful sterilization procedure,
and the dispositive question in this case is whether the plaintiffs may recover
damages for the extraordinary expenses that they allege they will incur in raising
a child who is said to have a congenital defect. The plaintiffs believe that
Cockrum, properly construed, bars only the recovery of the expenses of rearing
a child who is healthy and normal, and the plaintiffs contend that Cockrum is not
controlling here because they seek recovery of the extraordinary expenses of
raising a child who is alleged to be other than healthy and normal. The plaintiffs
further note that Siemieniec allowed parents to recover, in a wrongful-birth action,
extraordinary expenses of a child who suffered from a congenital malady, and the
plaintiffs contend that the same type of recovery should be permitted in their
action for wrongful pregnancy. The plaintiffs maintain that the birth of a child
with congenital abnormalities, like their son, is a foreseeable consequence of a
negligently performed sterilization procedure.
Authorities in other jurisdictions are divided on the question
whether parents may recover extraordinary child-rearing expenses in what would
be termed wrongful-pregnancy actions, with some courts denying recovery (see
Williams v. Van Biber, 886 S.W.2d 10 (Mo. App. 1994); Simmons v. Hertzman,
99 Ohio App. 3d 453, 651 N.E.2d 13 (1994)) and other courts allowing it (see
Fassoulas v. Ramey, 450 So. 2d 822 (Fla. 1984); Emerson v. Magendantz, __ A.2d
__ (R.I. 1997)). We believe that familiar principles of tort law, as well as
considerations of public policy, expressed in our prior cases on this subject, bar
the recovery sought by the plaintiffs.
To prevail in an action for medical malpractice, a plaintiff must
establish that the defendant's breach of a duty of due care proximately caused the
injury complained of, resulting in damages. See Addison v. Whittenberg, 124 Ill. 2d 287, 297 (1988). The plaintiffs argue that the birth of an unhealthy child was
a natural and foreseeable consequence of the defendants' negligence. We do not
believe that the allegations found in the plaintiffs' fourth amended complaint are
sufficient to establish that the defendants' conduct proximately caused the injury
complained of. There are no allegations in the present case that the defendants
caused the child's condition or misled the parents about the likelihood that a child
born to them would be defective. Indeed, the plaintiffs acknowledge in their briefs
before this court that they do not contend that the defendants caused their son's
condition or that the defendants could have detected the condition before the child
was born. Nor do the plaintiffs allege that the defendants knew that Mrs. Williams
sought sterilization as a means of avoiding the conception of a child with the
particular defect involved here. Without determining in this case whether such an
allegation would be sufficient to sustain recovery under a wrongful-pregnancy
theory, we do not believe that proximate cause can be established in the absence
of allegations forging a closer link between the defendant's negligence and the
eventual birth of the defective child.
In Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943),
this court stated:
"What constitutes proximate cause has been defined in
numerous decisions, and there is practically no difference
of opinion as to what the rule is. The injury must be the
natural and probable result of the negligent act or omission
and be of such a character as an ordinarily prudent person
ought to have foreseen as likely to occur as a result of the
negligence, although it is not essential that the person
charged with negligence should have foreseen the precise
injury which resulted from his act. [Citations.]"
Thus, "[i]f the result is one that an ordinarily prudent person would have foreseen
as likely to occur, then the party will be held responsible, even if the precise
injury which resulted is not foreseen." Scott & Fetzer Co. v. Montgomery Ward
& Co., 112 Ill. 2d 378, 393 (1986).
We do not believe that the plaintiffs can establish that the
defendant's conduct was a proximate cause of their injury, for under the
allegations in this case the plaintiffs' injury cannot be said to be of such a
character that an ordinarily prudent person should have foreseen it as a likely
consequence of the alleged negligence. The plaintiffs do not allege that any act or
omission by the defendants caused the child's condition, that the defendants knew
of the possibility that a child conceived in the wake of a failed operation would
suffer from a particular defect, or even that the parents were seeking to avoid a
specific risk and that the defendants were aware of that, assuming that allegations
of that nature would be a sufficient basis for liability.
The plaintiffs argue, however, that in this case the defendants had
notice of Mrs. Williams's medical history, which included a possible ectopic
pregnancy in 1979, a stillbirth in 1982, a premature birth in 1984, and "at least
one hyperactive and learning disabled child." The plaintiffs, in substance, contend
that the defendants may be liable here because they were aware, or should have
been aware, of Mrs. Williams's prior maternity-related problems, including the
birth of a hyperactive child. We find the plaintiffs' argument unpersuasive. The
plaintiffs do not allege that Mrs. Williams sought sterilization as a means of
avoiding conception of a child with that defect; there are no allegations here that
would make the birth of a child with the defect a foreseeable consequence of the
defendants' negligence.
Thus, we cannot say that the alleged negligence was the proximate
cause of the plaintiffs' injury in this case. Because the plaintiffs are unable to
establish proximate causation, their action for negligence must necessarily fail.
Proximate cause is a question of fact for the jury unless there is no material issue
regarding the matter or only one conclusion is clearly evident. Espinoza v. Elgin,
Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995); Gill v. Foster, 157 Ill. 2d 304, 310-11 (1993); Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993).
Here, we believe it is appropriate to determine the question as a matter of law, for
the complaint fails to disclose any allegations that, if true, would establish
proximate cause.
On these grounds, then, we must distinguish our decision in
Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987). In Siemieniec,
the plaintiffs alleged that the defendants provided incorrect information regarding
the likelihood that a child conceived by them would be afflicted with hemophilia,
preventing the parents from making an informed decision about whether to
conceive a child or carry one to term. The present action, for wrongful pregnancy,
is fundamentally different. As we have noted, the plaintiffs recognize in their
briefs that they do not allege that the defendants caused their son's condition or
that the defendants should have detected the condition before the child was born.
Thus, there are no allegations here that the defendants failed to properly advise the
parents about the likelihood that a child conceived by them would be afflicted
with a particular condition, or that the defendants failed to test the fetus to
disclose the possible existence of a condition. Moreover, the plaintiffs do not
allege that the defendants were aware of any extraordinary need on the part of the
parents to avoid conceiving a child, assuming again that allegations of that nature
would be sufficient to sustain liability. We leave unresolved the question whether
parents like the Siemieniecs, with a particular need to avoid conception of a child,
and who communicate that need to the defendant who performs the sterilization
procedure, may recover as damages the extraordinary expenses of raising a child
born in the wake of an unsuccessful and negligently performed operation.
The plaintiffs also cite Doerr v. Villate, 74 Ill. App. 2d 332 (1966),
in support of their attempt to recover special damages. In Doerr, a husband sought
and obtained a vasectomy because of congenital problems with the couple's two
prior children. The husband's wife later became pregnant, however, and the child
born as a result of the pregnancy was afflicted with similar problems. The wife
brought an action against the doctor who performed the procedure, attempting to
recover the extraordinary costs that would be incurred in raising the child. Without
being asked to decide the question, the appellate court assumed the validity of the
plaintiff's cause of action in that case, and the sole question on appeal involved
the timeliness of the action; the appellate court agreed with the wife that her
action was for breach of contract and was timely under the longer limitations
period applicable to contract actions.
Finally, we believe that allowing recovery of extraordinary child-
rearing expenses in these circumstances would be inconsistent with the decision
in Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983). Although Cockrum spoke in
terms of healthy, normal children, we are reluctant to permit the recovery of the
special costs of raising children who allegedly fail to fit that description, in the
absence of allegations and proof that the defendant performing the sterilization
procedure knew or should have known of the parents' particular need to avoid
conception. The plaintiffs would in effect carve out an exception to the rule
announced in Cockrum, allowing compensation for wrongful birth when a child
born following a failed sterilization procedure is alleged to be other than healthy
and normal. As this court noted in Siemieniec, however, virtually everyone is born
with some condition, characteristic, or trait that might be construed as rendering
the person other than healthy and normal, and we believe that the exception
asserted by the plaintiffs, if recognized, would eventually eclipse the limitation on
recovery established in Cockrum. In discussing the wrongful-life action brought
on behalf of the child in Siemieniec, this court stated, " `No man is perfect. Each
of us suffers from some ailments or defects, whether major or minor, which make
impossible participation in all the activities the world has to offer. But our lives
are not thereby rendered less precious than those of others whose defects are less
pervasive or less severe.' " Siemieniec, 117 Ill. 2d at 251, quoting Berman v.
Allan, 80 N.J. 421, 430, 404 A.2d 8, 13 (1979). Although Cockrum described the
children involved in that appeal as being healthy and normal, we do not believe
that allegations of a child's particular impairment alter the balance struck in that
case, at least in the absence of specific allegations that the defendant knew or
should have known of the parents' desire to avoid conception of a child with a
particular condition.
Given our resolution of the first question certified by the trial court,
we have no occasion here to address the second. For the reasons stated, the
judgment of the appellate court is affirmed.
Judgment affirmed.
JUSTICE HARRISON, dissenting:
I am pleased that my colleagues still recognize that all human life
is precious. I wonder, though, why they save that observation for this case. No one
here is suggesting or has ever suggested that Emmanuel's attention deficit
hyperactivity disorder renders him any less of a person or makes him less
deserving of parental love or the protection of the law than other children.
My colleagues rightly point out that we all have faults and that
none of us is perfect. Again, however, I wonder what that really has to do with
the dispute before us. While we may all suffer congenital deficiencies, not all such
deficiencies stand on the same plane. Contrary to the majority's implication, lack
of athletic ability or short stature or the gene for male pattern baldness are
qualitatively different than birth defects or mental disorders, and the law should
be sophisticated enough to tell the difference. Allowing recovery for the
extraordinary expenses associated with treating a serious and medically recognized
congenital defect of the sort afflicting Emmanuel does not mean that we will also
be obliged to allow claims by parents who are simply disappointed that their
offspring do not possess all of the attributes of some idealized "normal" child.
In Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983), this court relied
heavily on public policy considerations in assessing whether and to what extent
recovery should be allowed in so-called "wrongful pregnancy" cases such as this.
The court determined that such considerations precluded actions to obtain
reimbursement for the regular costs associated with rearing a child. Emmanuel's
parents, however, are not asking to recover such costs, and nothing in Cockrum
precludes recovery for the type of costs involved here.
Treatment of Emmanuel's condition will involve extraordinary
expenses, not faced by other parents, that would never have arisen if defendants
had performed the tubal ligation properly. There is no sound public policy
justification for placing the burden of those expenses on Emmanuel's parents
rather than the responsible parties. If we really value the sanctity of life and the
importance of the family unit, we should allow recourse to the parents who have
been the victims of medical malpractice and who will have to deal with its
consequences on a day-to-day basis. Permitting the medical providers to escape
the consequences of their mistakes accomplishes nothing.
Following Cockrum, this court held in Siemieniec v. Lutheran
General Hospital, 117 Ill. 2d 230, 258-60 (1987), that the parents of a genetically
or congenitally defective child may bring a wrongful pregnancy action to recover
the
"extraordinary expenses--medical, hospital,
institutional, educational and otherwise--which are necessary
to properly manage and treat the congenital or genetic
disorder."
This holding should be dispositive of the matter before us today.
The notion advanced by the majority here that plaintiffs' claim must
fail because they did not specifically allege that the defendants "knew or should
have known of the parents' desire to avoid conception of a child with a particular
condition" (slip op. at 9) is based on an overly narrow interpretation of Siemieniec.
In any conception and birth there is a risk of congenital defects, and whenever a
doctor performs a sterilization, he knows or should know that a child may be born
with such defects if the sterilization is performed improperly. That is enough, in
my view, to satisfy the issue of foreseeability. Requiring that the parents be
concerned about a particular defect makes no sense and serves no purpose.
Consider, for example, a mother who is sterilized because she fears
her child will be born with a hereditary disorder such as Tay-Sachs Disease; the
sterilization is done negligently; the mother conceives; and the resulting child is
born not with Tay-Sachs, but with spina bifida. There is still a congenital defect,
but because it was not the one anticipated, the majority's view would leave the
mother without recourse for the extraordinary expenses she will incur in raising
the child. In effect, the doctor would escape liability based on nothing more than
the turn of the genetic roulette wheel. Chance is no basis for a rule of law,
especially where the consequences are as serious as the welfare of an afflicted
child.
For the foregoing reasons, I would answer the first certified
question in the affirmative. Emmanuel's parents may bring an action against the
physicians and hospital responsible for his mother's failed tubal ligation to
recovery the extraordinary expenses they will incur in connection with his
attention deficit hyperactivity disorder. The judgment of the appellate court should
therefore be reversed, and the cause should be remanded to that court with
directions to answer the second question certified by the circuit court.
(10/19/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 81619--Agenda 16--May 1997.
ALICE WILLIAMS et al., Appellants, v. UNIVERSITY OF CHICAGO
HOSPITALS et al., Appellees.
Opinion filed October 23, 1997.
JUSTICE MILLER delivered the opinion of the court:
The plaintiffs, Alice and Jerry Williams, who are husband and wife,
brought the present action in the circuit court of Cook County seeking
compensation for the extraordinary expenses of raising a child who was born
following a failed sterilization operation performed on Mrs. Williams. The
plaintiffs allege that the child has attention deficit hyperactivity disorder, a
congenital condition, which will require him to receive psychological treatment
and special educational training in the future. Ruling on two pretrial motions, the
trial judge concluded that the plaintiffs could recover the extraordinary expenses
they will incur in treating their son's condition but could not present certain
testimony describing educational needs he will have. The judge certified those two
questions for interlocutory appeal under Supreme Court Rule 308. The appellate
court held that the plaintiffs could not recover the extraordinary child-rearing
expenses they seek; with that determination the appellate court found it
unnecessary to resolve the second certified question. 281 Ill. App. 3d 1057. We
allowed the plaintiffs' petition for leave to appeal (155 Ill. 2d R. 315(a)), and we
now affirm the judgment of the appellate court.
The procedural history of this case requires only a brief summary.
According to the plaintiffs' fourth amended complaint, Mrs. Williams underwent
a tubal ligation at the University of Chicago Hospitals in July 1984. The complaint
alleges that her medical history included a possible ectopic pregnancy in 1979, a
stillborn child in 1982, a premature birth in 1984, and "at least one hyperactive
and learning disabled child." Defendant Dr. Lane Mercer performed the
sterilization procedure, and the plaintiff saw Dr. Mercer and, later, defendant Dr.
Ann Zielinski, over the course of the next seven years. During that time, at
subsequent appointments, the defendants never informed Mrs. Williams that the
tubal ligation was other than successful. Following a laparoscopy performed in
1988 by Dr. Mercer and Dr. Zielinski, Mrs. Williams was told that the devices
used in the procedure were properly placed. Mrs. Williams learned in May 1991
that she was pregnant, however, and she gave birth in October 1991 to the child
who is the subject of the instant appeal, Emmanuel. According to the complaint,
Emmanuel has attention deficit hyperactivity disorder and will require
psychological treatment and special educational training in the years ahead. The
plaintiffs brought the present negligence action against the University of Chicago
Hospitals and Drs. Mercer and Zielinski, seeking recovery of those extraordinary
expenses.
The origins of this appeal lie in certain pretrial rulings made by the
trial judge. Before trial, the defendants filed motions in limine seeking to limit the
evidence that could be introduced by the plaintiffs. Although the motions are not
included in the record on appeal, the record does contain transcripts of the
hearings on the motions. Following argument by the parties, the trial judge
concluded that the plaintiffs could recover damages for the extraordinary costs
they will incur as a result of the child's condition. The trial judge also ruled,
however, that the plaintiffs could not present expert testimony regarding certain
educational services that the child will require, in light of the state's constitutional
duty to provide a free public education to children.
At the parties' request, the trial judge certified the following two
questions for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.
2d R. 308):
"[1] Do the parents of a child born following a
failed tubal ligation have a cause of action for special
damages against the treating physicians and hospital for the
extraordinary psychological and/or educational expenses
which may be incurred in raising their child, where the
complaint alleges that Mrs. Williams' medical history
included a hyperactive son by another father, but there are
no allegations or proof that the Defendants proximately
caused Emmanuel Williams' Attention Deficit Hyperactivity
Disorder?
[2] Where plaintiff[s'] expert testifies that the public
school will more likely than not fail to provide the
appropriate special education, special therapy or mental
treatment, should the plaintiff[s] be allowed to present
evidence, as part of their damages, showing the future
extraordinary educational expenses of the abnormal child in
a wrongful pregnancy action?"
The appellate court accepted the case for review (155 Ill. 2d R.
308(a)) and answered the first question in the negative. 281 Ill. App. 3d 1057. The
appellate court believed that the defendants' alleged negligence was not the
proximate cause of the injury complained of, and the court therefore concluded
that the plaintiffs could not recover from the defendants the extraordinary costs
of raising the child at issue in this case. The court's decision rendered moot the
second question certified by the trial judge. We granted the plaintiffs' petition for
leave to appeal (155 Ill. 2d R. 315(a)), and we later allowed the Illinois Trial
Lawyers' Association and the Illinois Association of Defense Trial Counsel to
submit briefs as amici curiae (155 Ill. 2d R. 345(a)).
It will be helpful at the outset to clarify the various causes of action
that have previously been asserted by parents and children for birth-related torts.
An action for "wrongful pregnancy" or, as it has also been termed, "wrongful
conception"--the action involved here--may be brought by parents following a
negligently performed sterilization procedure. In an action for wrongful pregnancy,
the parents seek to recover compensation for the expenses of the pregnancy they
sought to avoid. Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 256
(1987). This court noted in Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983),
that parents bringing such an action are generally permitted to recover damages
for the cost of the unsuccessful operation, pain and suffering, any medical
complications caused by the pregnancy, the costs of the child's delivery, lost
wages, and loss of consortium. The recovery of those items is not at issue here.
In contrast to those damages, however, Cockrum held that parents may not be
awarded the expenses of raising a normal, healthy child born following the
negligently performed procedure.
An action for "wrongful birth," a distinct cause of action, refers to
a suit brought by parents who allege that they would not have conceived a child
or carried one to term if it had not been for the defendant's negligence in
"prenatal testing, genetic prognosticating, or counseling parents as to the likelihood
of giving birth to a physically or mentally impaired child." Siemieniec, 117 Ill. 2d
at 235. In Siemieniec, parents who alleged that they received incorrect information
regarding the likelihood that a child conceived by them would have hemophilia
were allowed to recover "the extraordinary expenses--medical, hospital,
institutional, educational and otherwise--which are necessary to properly manage
and treat the congenital or genetic disorder." Siemieniec, 117 Ill. 2d at 260.
Finally, "wrongful life" is the term used to describe an action
asserted by a parent or guardian on behalf of a minor in which the child seeks
compensation for the failure to give his or her parents proper advice regarding the
child's congenital condition. Siemieniec, 117 Ill. 2d at 236. In Goldberg v. Ruskin,
113 Ill. 2d 482, 486 (1986), this court refused to recognize an action for wrongful
life, noting the nearly universal rejection by courts of a child's recovery of general
damages under a wrongful-life theory, a result founded "on the value of life and
the inherent difficulty of ascertaining a cognizable injury for which damages may
be meaningfully awarded." Siemieniec later reaffirmed Goldberg by denying the
child's separate wrongful-life claim in that case. Siemieniec, 117 Ill. 2d at 238-53.
The present appeal involves only an action for wrongful pregnancy,
brought by the parents of a child born after an unsuccessful sterilization procedure,
and the dispositive question in this case is whether the plaintiffs may recover
damages for the extraordinary expenses that they allege they will incur in raising
a child who is said to have a congenital defect. The plaintiffs believe that
Cockrum, properly construed, bars only the recovery of the expenses of rearing
a child who is healthy and normal, and the plaintiffs contend that Cockrum is not
controlling here because they seek recovery of the extraordinary expenses of
raising a child who is alleged to be other than healthy and normal. The plaintiffs
further note that Siemieniec allowed parents to recover, in a wrongful-birth action,
extraordinary expenses of a child who suffered from a congenital malady, and the
plaintiffs contend that the same type of recovery should be permitted in their
action for wrongful pregnancy. The plaintiffs maintain that the birth of a child
with congenital abnormalities, like their son, is a foreseeable consequence of a
negligently performed sterilization procedure.
Authorities in other jurisdictions are divided on the question
whether parents may recover extraordinary child-rearing expenses in what would
be termed wrongful-pregnancy actions, with some courts denying recovery (see
Williams v. Van Biber, 886 S.W.2d 10 (Mo. App. 1994); Simmons v. Hertzman,
99 Ohio App. 3d 453, 651 N.E.2d 13 (1994)) and other courts allowing it (see
Fassoulas v. Ramey, 450 So. 2d 822 (Fla. 1984); Emerson v. Magendantz, __ A.2d
__ (R.I. 1997)). We believe that familiar principles of tort law, as well as
considerations of public policy, expressed in our prior cases on this subject, bar
the recovery sought by the plaintiffs.
To prevail in an action for medical malpractice, a plaintiff must
establish that the defendant's breach of a duty of due care proximately caused the
injury complained of, resulting in damages. See Addison v. Whittenberg, 124 Ill. 2d 287, 297 (1988). The plaintiffs argue that the birth of an unhealthy child was
a natural and foreseeable consequence of the defendants' negligence. We do not
believe that the allegations found in the plaintiffs' fourth amended complaint are
sufficient to establish that the defendants' conduct proximately caused the injury
complained of. There are no allegations in the present case that the defendants
caused the child's condition or misled the parents about the likelihood that a child
born to them would be defective. Indeed, the plaintiffs acknowledge in their briefs
before this court that they do not contend that the defendants caused their son's
condition or that the defendants could have detected the condition before the child
was born. Nor do the plaintiffs allege that the defendants knew that Mrs. Williams
sought sterilization as a means of avoiding the conception of a child with the
particular defect involved here. Without determining in this case whether such an
allegation would be sufficient to sustain recovery under a wrongful-pregnancy
theory, we do not believe that proximate cause can be established in the absence
of allegations forging a closer link between the defendant's negligence and the
eventual birth of the defective child.
In Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943),
this court stated:
"What constitutes proximate cause has been defined in
numerous decisions, and there is practically no difference
of opinion as to what the rule is. The injury must be the
natural and probable result of the negligent act or omission
and be of such a character as an ordinarily prudent person
ought to have foreseen as likely to occur as a result of the
negligence, although it is not essential that the person
charged with negligence should have foreseen the precise
injury which resulted from his act. [Citations.]"
Thus, "[i]f the result is one that an ordinarily prudent person would have foreseen
as likely to occur, then the party will be held responsible, even if the precise
injury which resulted is not foreseen." Scott & Fetzer Co. v. Montgomery Ward
& Co., 112 Ill. 2d 378, 393 (1986).
We do not believe that the plaintiffs can establish that the
defendant's conduct was a proximate cause of their injury, for under the
allegations in this case the plaintiffs' injury cannot be said to be of such a
character that an ordinarily prudent person should have foreseen it as a likely
consequence of the alleged negligence. The plaintiffs do not allege that any act or
omission by the defendants caused the child's condition, that the defendants knew
of the possibility that a child conceived in the wake of a failed operation would
suffer from a particular defect, or even that the parents were seeking to avoid a
specific risk and that the defendants were aware of that, assuming that allegations
of that nature would be a sufficient basis for liability.
The plaintiffs argue, however, that in this case the defendants had
notice of Mrs. Williams's medical history, which included a possible ectopic
pregnancy in 1979, a stillbirth in 1982, a premature birth in 1984, and "at least
one hyperactive and learning disabled child." The plaintiffs, in substance, contend
that the defendants may be liable here because they were aware, or should have
been aware, of Mrs. Williams's prior maternity-related problems, including the
birth of a hyperactive child. We find the plaintiffs' argument unpersuasive. The
plaintiffs do not allege that Mrs. Williams sought sterilization as a means of
avoiding conception of a child with that defect; there are no allegations here that
would make the birth of a child with the defect a foreseeable consequence of the
defendants' negligence.
Thus, we cannot say that the alleged negligence was the proximate
cause of the plaintiffs' injury in this case. Because the plaintiffs are unable to
establish proximate causation, their action for negligence must necessarily fail.
Proximate cause is a question of fact for the jury unless there is no material issue
regarding the matter or only one conclusion is clearly evident. Espinoza v. Elgin,
Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995); Gill v. Foster, 157 Ill. 2d 304, 310-11 (1993); Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993).
Here, we believe it is appropriate to determine the question as a matter of law, for
the complaint fails to disclose any allegations that, if true, would establish
proximate cause.
On these grounds, then, we must distinguish our decision in
Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987). In Siemieniec,
the plaintiffs alleged that the defendants provided incorrect information regarding
the likelihood that a child conceived by them would be afflicted with hemophilia,
preventing the parents from making an informed decision about whether to
conceive a child or carry one to term. The present action, for wrongful pregnancy,
is fundamentally different. As we have noted, the plaintiffs recognize in their
briefs that they do not allege that the defendants caused their son's condition or
that the defendants should have detected the condition before the child was born.
Thus, there are no allegations here that the defendants failed to properly advise the
parents about the likelihood that a child conceived by them would be afflicted
with a particular condition, or that the defendants failed to test the fetus to
disclose the possible existence of a condition. Moreover, the plaintiffs do not
allege that the defendants were aware of any extraordinary need on the part of the
parents to avoid conceiving a child, assuming again that allegations of that nature
would be sufficient to sustain liability. We leave unresolved the question whether
parents like the Siemieniecs, with a particular need to avoid conception of a child,
and who communicate that need to the defendant who performs the sterilization
procedure, may recover as damages the extraordinary expenses of raising a child
born in the wake of an unsuccessful and negligently performed operation.
The plaintiffs also cite Doerr v. Villate, 74 Ill. App. 2d 332 (1966),
in support of their attempt to recover special damages. In Doerr, a husband sought
and obtained a vasectomy because of congenital problems with the couple's two
prior children. The husband's wife later became pregnant, however, and the child
born as a result of the pregnancy was afflicted with similar problems. The wife
brought an action against the doctor who performed the procedure, attempting to
recover the extraordinary costs that would be incurred in raising the child. Without
being asked to decide the question, the appellate court assumed the validity of the
plaintiff's cause of action in that case, and the sole question on appeal involved
the timeliness of the action; the appellate court agreed with the wife that her
action was for breach of contract and was timely under the longer limitations
period applicable to contract actions.
Finally, we believe that allowing recovery of extraordinary child-
rearing expenses in these circumstances would be inconsistent with the decision
in Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983). Although Cockrum spoke in
terms of healthy, normal children, we are reluctant to permit the recovery of the
special costs of raising children who allegedly fail to fit that description, in the
absence of allegations and proof that the defendant performing the sterilization
procedure knew or should have known of the parents' particular need to avoid
conception. The plaintiffs would in effect carve out an exception to the rule
announced in Cockrum, allowing compensation for wrongful birth when a child
born following a failed sterilization procedure is alleged to be other than healthy
and normal. As this court noted in Siemieniec, however, virtually everyone is born
with some condition, characteristic, or trait that might be construed as rendering
the person other than healthy and normal, and we believe that the exception
asserted by the plaintiffs, if recognized, would eventually eclipse the limitation on
recovery established in Cockrum. In discussing the wrongful-life action brought
on behalf of the child in Siemieniec, this court stated, " `No man is perfect. Each
of us suffers from some ailments or defects, whether major or minor, which make
impossible participation in all the activities the world has to offer. But our lives
are not thereby rendered less precious than those of others whose defects are less
pervasive or less severe.' " Siemieniec, 117 Ill. 2d at 251, quoting Berman v.
Allan, 80 N.J. 421, 430, 404 A.2d 8, 13 (1979). Although Cockrum described the
children involved in that appeal as being healthy and normal, we do not believe
that allegations of a child's particular impairment alter the balance struck in that
case, at least in the absence of specific allegations that the defendant knew or
should have known of the parents' desire to avoid conception of a child with a
particular condition.
Given our resolution of the first question certified by the trial court,
we have no occasion here to address the second. For the reasons stated, the
judgment of the appellate court is affirmed.
Judgment affirmed.
JUSTICE HARRISON, dissenting:
I am pleased that my colleagues still recognize that all human life
is precious. I wonder, though, why they save that observation for this case. No one
here is suggesting or has ever suggested that Emmanuel's attention deficit
hyperactivity disorder renders him any less of a person or makes him less
deserving of parental love or the protection of the law than other children.
My colleagues rightly point out that we all have faults and that
none of us is perfect. Again, however, I wonder what that really has to do with
the dispute before us. While we may all suffer congenital deficiencies, not all such
deficiencies stand on the same plane. Contrary to the majority's implication, lack
of athletic ability or short stature or the gene for male pattern baldness are
qualitatively different than birth defects or mental disorders, and the law should
be sophisticated enough to tell the difference. Allowing recovery for the
extraordinary expenses associated with treating a serious and medically recognized
congenital defect of the sort afflicting Emmanuel does not mean that we will also
be obliged to allow claims by parents who are simply disappointed that their
offspring do not possess all of the attributes of some idealized "normal" child.
In Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983), this court relied
heavily on public policy considerations in assessing whether and to what extent
recovery should be allowed in so-called "wrongful pregnancy" cases such as this.
The court determined that such considerations precluded actions to obtain
reimbursement for the regular costs associated with rearing a child. Emmanuel's
parents, however, are not asking to recover such costs, and nothing in Cockrum
precludes recovery for the type of costs involved here.
Treatment of Emmanuel's condition will involve extraordinary
expenses, not faced by other parents, that would never have arisen if defendants
had performed the tubal ligation properly. There is no sound public policy
justification for placing the burden of those expenses on Emmanuel's parents
rather than the responsible parties. If we really value the sanctity of life and the
importance of the family unit, we should allow recourse to the parents who have
been the victims of medical malpractice and who will have to deal with its
consequences on a day-to-day basis. Permitting the medical providers to escape
the consequences of their mistakes accomplishes nothing.
Following Cockrum, this court held in Siemieniec v. Lutheran
General Hospital, 117 Ill. 2d 230, 258-60 (1987), that the parents of a genetically
or congenitally defective child may bring a wrongful pregnancy action to recover
the
"extraordinary expenses--medical, hospital,
institutional, educational and otherwise--which are necessary
to properly manage and treat the congenital or genetic
disorder."
This holding should be dispositive of the matter before us today.
The notion advanced by the majority here that plaintiffs' claim must
fail because they did not specifically allege that the defendants "knew or should
have known of the parents' desire to avoid conception of a child with a particular
condition" (slip op. at 9) is based on an overly narrow interpretation of Siemieniec.
In any conception and birth there is a risk of congenital defects, and whenever a
doctor performs a sterilization, he knows or should know that a child may be born
with such defects if the sterilization is performed improperly. That is enough, in
my view, to satisfy the issue of foreseeability. Requiring that the parents be
concerned about a particular defect makes no sense and serves no purpose.
Consider, for example, a mother who is sterilized because she fears
her child will be born with a hereditary disorder such as Tay-Sachs Disease; the
sterilization is done negligently; the mother conceives; and the resulting child is
born not with Tay-Sachs, but with spina bifida. There is still a congenital defect,
but because it was not the one anticipated, the majority's view would leave the
mother without recourse for the extraordinary expenses she will incur in raising
the child. In effect, the doctor would escape liability based on nothing more than
the turn of the genetic roulette wheel. Chance is no basis for a rule of law,
especially where the consequences are as serious as the welfare of an afflicted
child.
For the foregoing reasons, I would answer the first certified
question in the affirmative. Emmanuel's parents may bring an action against the
physicians and hospital responsible for his mother's failed tubal ligation to
recovery the extraordinary expenses they will incur in connection with his
attention deficit hyperactivity disorder. The judgment of the appellate court should
therefore be reversed, and the cause should be remanded to that court with
directions to answer the second question certified by the circuit court.
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