EXTRAORDINARY EXPENSES MAY BE RECOVERABLE IN WRONGFUL PREGNANCY CASES
By: Mary M. Cunningham
The Appellate Court has recently expanded the ability to recover extraordinary expenses, or expenses incurred in raising a child afflicted with a genetic illness to the age of majority, in a Wrongful Pregnancy claim. Williams v. Rosner, 2014 ILApp (1st) 12-0378.
Cynthia and Kenneth Williams both carry the sickle cell trait, and have a son who was born with the disease. To avoid further pregnancy and children with sickle cell disease, Cynthia underwent a tubal ligation performed by the Defendant. Unbeknownst to her, the Defendant left one of her fallopian tubes and one of her ovaries intact. She subsequently became pregnant and gave birth to a daughter, Kennadi, who was diagnosed with sickle cell disease. Cynthia and Kenneth, as parents and next friends of Kennadi Williams, filed a Complaint alleging negligence and Wrongful Pregnancy, and sought damages, including extraordinary expenses that they will incur in raising Kennadi Williams to the age of majority. The Defendant filed a Motion to Dismiss arguing that there was no authority in the State of Illinois for the recovery of extraordinary expenses, and that recovery would be precluded because the sickle cell disease was caused by the genetic defect, not the negligence of the physician. The Circuit Court denied the Defendant’s Motion to Dismiss, but subsequently agreed to certify the question as to whether extraordinary expenses are recoverable, indicating that the question involved a question of law as to which there was a substantial ground for a difference of opinion, and that an immediate appeal would materially advance the ultimate termination of the litigation.
The Appellate Court, after significant analysis, agreed with the Circuit Court’s denial of the Defendant’s Motion to Dismiss.
Initially, the Appellate Court analyzed the birth related medical negligence tort claims recognized in Illinois, including Wrongful Birth and Wrongful Pregnancy. It recognized that in successful Wrongful Birth claims, parents are entitled to request recovery of extraordinary damages, including the medical, institutional, and educational expenses that are necessary to properly manage and treat their child’s congenital or genetic disorder; they outlined that Wrongful Birth cases are ones in which parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal or genetic testing and failed to counsel them on the likelihood of giving birth to a physically or mentally impaired child. Wrongful Pregnancy actions are claims brought by parents of the child who is born following a negligently performed sterilization procedure.
The Court then further analyzed Wrongful Pregnancy cases. It acknowledged that historically, plaintiffs in Wrongful Pregnancy claims have been unable to allege extraordinary expenses, but have been limited to general damages which include costs associated with the failed operation, pain and suffering, cost of delivery, lost wages, and loss of consortium. Courts have been reluctant to expand the damages permitted in Wrongful Pregnancy actions to include recovery for the cost of raising a normal and healthy child. However, it acknowledged that there are other cases in which parents have filed claims against a physician who was aware of the potential for a physically or mentally impaired child. Those courts rejected a request for extraordinary damages based on the lack of sufficient pleading of proximate cause; the plaintiffs in those cases acknowledged that they could not contend that the defendants caused the medical or physical condition or could have detected it before birth.
The Williams case found those cases distinguishable. In this case, they found that the key element of proximate cause was foreseeability. Thus in the Williams case, the Defendant could reasonably foresee that another child could be conceived with the sickle cell disease, because he knew that both parents were afflicted with the trait, and he knew that they already had a child with the disease. Thus, the birth of another diseased child would be a foreseeable consequence of a negligently performed sterilization procedure. The Court agreed with this rationale and specifically denied the Defendant’s contention that the Defendant’s knowledge of the fact that the parents already had a child with sickle cell disease does not make it foreseeable that another one will be born with the disease. Rather, the Court found that the Plaintiffs set forth appropriate allegations that, if taken as true, allege a special need to avoid conception because of the known genetic defects, the communication of need to avoid conception and the foreseeability or likelihood of the risk of genetic consequences in another child. Thus, the Court found that because the Plaintiffs alleged that the defendant should have foreseen the birth of another sickle cell diseased child to be a likely consequence of a negligently performed tubal ligation procedure, the Court allowed the Plaintiffs’ case to proceed. Another factor they found compelling was that Plaintiffs allegation that “but for” the negligent conduct of the Defendant, the birth of the genetically diseased child would not have occurred.
Interestingly, the Court rejected the Defendant’s suggestion that allowing recovery for extraordinary expenses in a Wrongful Pregnancy case would open floodgates to litigation in this area. The Court articulated its rationale that careful pleading and continued adherence to traditional proximate cause analysis should preclude claims for extraordinary damages for every unforeseeable or slight genetic abnormality.
Although the Williams case presents a very limited factual situation involving sufficiency of the pleadings and the concept of proximate cause, it invites a request for extraordinary damages in Wrongful Pregnancy cases when a plaintiff can plead specific facts about foreseeability or likelihood of the birth of a genetically diseased child.