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Wilczynski v. Goodman





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Plaintiff appeals from the dismissal of her three-count complaint by the circuit court of Cook County which charged defendant physician with failure to perform a proper abortion. An apparently normal *fn1 child was born to plaintiff for which she sought damages for medical and hospital costs and expenses as well as anticipated expenses required for the child's upbringing and education. The three counts were founded on the theories of negligence, breach of contract and breach of warranty. Defendant's motion to dismiss each count was based upon a number of grounds which will be later discussed in detail. The order of dismissal is general and contains no findings with respect to the complaint.

The issues presented for review are whether: (1) the complaint states a cause of action; (2) a physician who undertakes to perform an abortion and fails to terminate the pregnancy should be liable for all reasonably foreseeable damages resulting from his negligence, including costs and expenses of raising the child to majority; (3) the detriment to a patient resulting from her reliance upon the promise or warranty of a physician to bring about a specific result, in addition to payment for services rendered, is sufficient to support an action for breach of such promise or warranty; and (4) damages in the nature of costs and expenses of raising a child born as a result of such breach are proper in a contract action.

For the reasons that follow, we affirm in part, reverse in part and remand the cause for further consideration.

The well-pleaded facts essential to this appeal, emerging from plaintiff's complaint, reveal that defendant was a practicing osteopathic physician licensed under the laws of Illinois who, on January 7, 1976, undertook to perform a therapeutic abortion for the purpose of terminating plaintiff's pregnancy. The pregnancy in fact was not terminated and plaintiff asserts that she was forced to bear and deliver a child on September 4, 1976, for which she has been compelled to pay the expenses of medical and hospital treatment in addition to incurring the costs of raising and educating her child.

With respect to the tort action set forth in count I, plaintiff charges defendant with negligence in the following instances: (1) failing to diagnose plaintiff's condition of pregnancy; (2) attempting to perform a therapeutic abortion upon plaintiff; (3) failing to discover that plaintiff's pregnancy was not terminated; (4) failing to consult with or refer plaintiff to another physician capable of diagnosing and treating plaintiff's condition; and (5) improperly and unskillfully attending and treating plaintiff. One or more of the foregoing were alleged to have been the proximate cause of plaintiff's child bearing, delivery and damages.

The breach of contract action set forth in count II alleges that: (1) plaintiff and defendant entered into an oral contract on January 7, 1976, whereby defendant promised to terminate plaintiff's pregnancy for which plaintiff would and did pay him the amount of monetary consideration he requested; (2) defendant performed the medical operation on plaintiff on January 7, 1976, and advised her that the pregnancy had been terminated as promised; (3) in fact the pregnancy was not terminated and plaintiff gave birth to a child; and (4) as a result of defendant's breach of contract, plaintiff paid not only for services not performed but also incurred expenses of medical and hospital care for the birth of a child and will incur further expenses for her care and education until she attains the age of majority.

For her third count, plaintiff realleged and adopted allegations contained in count I and added the claims that: (1) on the day of the operation defendant warranted to her that the abortion was successful and plaintiff was no longer pregnant; (2) she relied upon the warranty to her detriment in that her condition of pregnancy went undiagnosed until a later date when it was too late to intervene so as to prevent the child's birth; and (3) that as a result of the warranty's breach plaintiff incurred medical and hospital expenses and will incur expenses for the child's care and education until she reaches her majority.

Defendant's motion to dismiss was based upon the grounds that: (1) plaintiff had suffered no damages in the normal birth of a normal, healthy child with no permanent harm to the mother; (2) in Illinois, pregnancy, birth and the costs and expenses of rearing a child are not legally cognizable injuries; (3) it is against public policy for a court to declare that life under any adverse conditions or to any person could be or is damaging; (4) many people would be willing to support and care for plaintiff's child if they were given the right of custody and adoption, were the child truly unwanted and burdensome to plaintiff; and (5) counts II and III fail to state the requisite separate consideration for the alleged warranty, apart from those expended by plaintiff for performance of the abortion, citing Rogala v. Silva (1973), 16 Ill. App.3d 63, 305 N.E.2d 571.

The motion was briefed and supported by memoranda submitted by both parties. Following oral argument on January 11, 1978, defendant's motion to dismiss was allowed.

Plaintiff correctly observes that the threshold consideration in this appeal is to regard all well-pleaded facts contained within the complaint as admitted and true. (Loughman Cabinet Co. v. C. Iber & Sons, Inc. (1977), 46 Ill. App.3d 873, 876, 361 N.E.2d 379; Logan v. Presbyterian-St. Luke's Hospital (1968), 92 Ill. App.2d 68, 74, 235 N.E.2d 851.) All reasonable inferences which can be fairly drawn from the facts alleged must also be considered as true. (Bray v. Illinois National Bank (1976), 37 Ill. App.3d 286, 290, 345 N.E.2d 503; In re Estate of Hansen (1969), 109 Ill. App.2d 283, 295, 248 N.E.2d 709.) It is error to dismiss a cause of action on the pleadings unless it clearly appears that plaintiff cannot recover under any set of facts which can be proved true under the pleadings. (Kaplan v. Keith (1978), 60 Ill. App.3d 804, 806-07, 377 N.E.2d 279; Country Mutual Insurance Co. v. Drendel (1969), 116 Ill. App.2d 466, 252 N.E.2d 757.) Defendant does not argue to the contrary; rather, he challenges plaintiff's legal conclusions that she has causes of action, basing his position principally upon public policy considerations. He inferentially reads the complaint as seeking a judicially established policy favoring abortion contrary to the announced legislative policy of Illinois, which reaffirms the State's interest in the unborn child's right to life and in protecting such children by prohibiting abortion unless necessary to preserve the mother's life.


Plaintiff maintains that she has a constitutionally protected right to be free from unwarranted governmental intrusions into matters fundamentally affecting her person, such as the decision of whether to beget or bear a child, citing Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705. That case deemed the right to privacy recognized in Griswold v. Connecticut (1965), 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678, as broad enough to encompass a woman's decision as to whether to terminate a pregnancy, nor not. Roe v. Wade does not unqualifiedly recognize the right to privacy in abortion matters; rather, it identifies important State interests in regulation of abortion as equally important adjunctive considerations, stating (410 U.S. 113, 159, 35 L.Ed.2d 147, 180, 93 S.Ct. 705, 730):

"The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly."

Further in its opinion the Supreme Court fashioned a formula regarding the legitimate parameters of State interests (410 U.S. 113, 163-64, 35 L.Ed.2d 147, 182-83, 93 S.Ct. 705, 731-32):

"With respect to the State's important and legitimate interest in the health of the mother, the `compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility ...

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