Extraordinary Damages in Wrongful Birth-Conception Case is Allowed by Illinois Appellate Court

Cynthia and Kenneth Williams’s first child was born with sickle cell anemia. After the birth of their first child, the Williamses found out that they both had the sickle cell trait in which a normal gene is paired with the allele that causes sickle-shaped hemoglobin.

Individuals who carry this sickle cell trait usually don’t have symptoms of the blood disorder because their normal gene creates functional hemoglobin. However, when a baby is born from parents who both have the sickle cell trait, there is a 25% chance of getting two of the abnormal genes and the full-blown sickle cell disease for the child.

The Williamses were unwilling to take a chance with a second baby, and Cynthia decided to have tubal ligation. However, Cynthia became pregnant again allegedly because her physician, Dr. Byron Rosner, failed to close off one of her fallopian tubes during the sterilization surgery.

The Williams’s second child was born with the sickle cell disease.

In the “wrongful conception” case that they filed against Dr. Rosner and his medical group, there was no dispute that they were entitled to recover general damages such as for the costs of the “unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the cost of delivery, lost wages and loss of consortium.” Cockrum v. Baumgartner, 95 Ill.2d 193 (1983).

In this case, the Williamses argued for an extension of the Cockrum case by seeking compensation for the extraordinary medical expenses they will have to incur because of their child’s blood disorder, the full blown sickle cell anemia.

The trial judge denied a motion to dismiss the complaint although the judge certified the case for immediate appeal, which was taken.

The appellate court ruled in favor of the Williamses concluding that, “Whereas here, the birth of a child with a genetic abnormality is a foreseeable consequence of a negligently performed sterilization procedure and where the parents’ desire to avoid contraception precisely for that reason has been communicated to the doctor performing the procedure, parents may assert a claim for the extraordinary costs that they will incur in raising their child to the age of majority.”

In one instance there are cases known as “wrongful birth” actions where the parents decide against taking the child to full term because of neonatal testing or genetic testing that advised them that the likelihood of giving birth to a child will result in a physical or mentally impaired child. Williams v. University of Chicago Hospitals, 179 Ill.2d 80 (1997).

In wrongful birth claims, the plaintiffs or parents would be entitled to recover extraordinary damages including the medical, institutional and educational expenses necessary to properly manage and treat their child’s congenital or genetic disorder.

Another type of case, “wrongful life,” are actions brought by a parent or guardian on behalf of a minor child who suffers from a genetic or congenital disorder. Goldberg v. Ruskin, 113 Ill.2d 482 (1986).

In wrongful life claims, the action is brought claiming that the medical provider failed to accurately perform genetic screening tests and inform the child’s parents about the hereditary nature of certain disorders or chose not to accurately advise the child’s parents about the genetic risks associated with childbirth or failed to perform a surgical procedure intended to prevent the birth of a genetically disordered child. Siemieniec v. Lutheran General Hospital, 117 IL 2d 230 (1987).

Illinois courts have repeatedly rejected wrongful life actions based on public policy grounds. The last kind of action available is called a “wrongful pregnancy” or “wrongful conception” in which the cause of action issue is similar to the appeal taken in this case. These are claims brought by parents of a child who was born following a negligently performed sterilization procedure. In wrongful pregnancy or wrongful conception cases, parents who file such actions seek to file compensation for the pregnancy they wanted to avoid. In those cases, the plaintiffs have been limited to general damages, including costs related to the “unsuccessful operation, the pain and suffering involved, any complications caused by the pregnancy, the cost of delivery, lost wages and loss of consortium.” Cockrum v. Baumgartner, 95 Ill.2d 193 (1983).

“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 . . .”

In this case, the defendants argued that the plaintiffs could not satisfy the elements of proximate cause as necessary to justify expanding the scope of recoverable damages in wrongful pregnancy cases. In both cases the plaintiffs wanted extraordinary expense.

The plaintiffs here argued that Williams v. The University of Chicago Hospitals case stands for the proposition that a plaintiff in a negligence action may recover only those damages that are foreseeable as a likely consequence of the defendant’s negligence. When the pleadings establish that the birth of a diseased child is a foreseeable consequence of a negligently performed sterilization procedure, wrongful pregnancy plaintiffs should be able to obtain an award of extraordinary damages. The Illinois Appellate Court agreed with the plaintiffs.

The difference between this case and the Williams v. The University of Chicago Hospitals case was that here the genetic abnormality was a foreseeable consequence of a negligently performed sterilization procedure and the parents desired to avoid contraception for that reason, which was communicated to Dr. Rosner. Accordingly, the court agreed that extraordinary costs that may occur in the future in raising their child was and is proper. Thus, the trial court’s denial of the motion to dismiss plaintiff’s complaint was affirmed.

Cynthia and Kenneth Williams v. Byron Rosner, M.D., 2014 IL App (1st) 120378.

Kreisman Law Offices has been handling medical negligence cases, nursing home abuse cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Richton Park, Stickney, Bedford Park, Chicago Ridge, Marionette Park, Blue Island, Calumet Park, Riverdale, Harvey, Alsip, Robbins, Worth, Oak Lawn, Evergreen Park, Schiller Park, River Grove, Elmwood Park, Melrose Park and Oak Park, Ill.

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