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Cockrum v. Baumgartner







Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Louis J. Giliberto, Judge, presiding.


Rehearing denied April 8, 1983.

This appeal concerns the extent of the damages that may be recovered in a malpractice action based on a so-called "wrongful pregnancy" or "wrongful birth." The issue was raised in two medical malpractice suits that were consolidated on appeal from the circuit court of Cook County to the appellate court. In both cases, the plaintiffs had alleged that but for the negligence of the defendants each of the female plaintiffs would not have borne a child. In both actions, the plaintiffs sought to recover for the pain of childbirth, the time lost in having the child, and the medical expenses involved. The plaintiffs sought also to recover as damages the future expenses of raising the children, who, it would appear, are healthy and normal. The circuit court dismissed the counts that set out the claims for the expenses of rearing the children. The plaintiffs appealed, and the appellate court reversed those judgments. (99 Ill. App.3d 271.) We granted the defendants leave to appeal under Rule 315 (73 Ill.2d R. 315).

Both suits were filed in the circuit court of Cook County. Cockrum v. Baumgartner was brought by Donna and Leon Cockrum against Dr. George Baumgartner and a laboratory that performed tests according to Dr. Baumgartner's instructions. The Cockrums alleged that Dr. Baumgartner negligently performed a vasectomy upon Leon Cockrum. Also, they claimed that he was negligent in telling them that a sperm test conducted by the laboratory showed no live sperm when he should have known that the laboratory report showed that the vasectomy had been medically unsuccessful. The Cockrums also alleged that after the attempted vasectomy Donna Cockrum became pregnant and gave birth to a child, and they claimed that she would not have become pregnant if the physician had not been negligent.

In Raja v. Tulsky, Edna and Afzal Raja brought an action against Dr. A. Tulsky and Michael Reese Hospital and Medical Center. The Rajas alleged that Dr. Tulsky negligently performed a bilateral tubal cauterization upon Edna Raja, which operation was designed to make her sterile. They alleged that about five years after the operation Edna Raja began to experience signs of pregnancy. She was examined at Michael Reese's gynecology clinic and advised, however, that she was not pregnant. Later, after the time in which the plaintiffs say it was medically safe to have an abortion, she learned that she was in fact pregnant. Edna Raja alleged that she suffers from hypertensive cardiac disease, and that she had been informed that it would be medically dangerous for her to have a child. The Rajas claim that Michael Reese was negligent in failing to determine that she was pregnant. They say that if Michael Reese had told her that she was pregnant, she would have elected to terminate the pregnancy. Those counts in which Dr. Tulsky was named as a defendant were dismissed as barred by the statute of limitations and are not at issue here.

The Rajas and the Cockrums each gave birth to a child, and there is no indication that the children are other than normal and healthy. The only issue is whether the trial court erred in dismissing the counts in which the plaintiffs sought to recover as damages the future expenses of rearing the child.

As we have stated, the appellate court held that such expenses are recoverable. The members of the panel in the appellate court disagreed, however, in one respect. Two of the three judges believed that in determining damages the trier of fact should be permitted to consider the benefits the plaintiffs receive from the parent-child relationship. (99 Ill. App.3d 271, 275-77 (Linn, J., specially concurring), 277 (Romiti, P.J., specially concurring).) The third member of the court, on the other hand, considered that such an offset would be improper. 99 Ill. App.3d 271, 274.

The courts> in the majority of States that have considered "wrongful pregnancy" or "wrongful birth" actions have recognized a cause of action against a physician where it is alleged that because of the doctor's negligence the plaintiff conceived or gave birth. (See Annot., Tort Liability for Wrongfully Causing One to be Born, 83 A.L.R.3d 15, 29 (1978).) These courts> have generally held that in such actions the infant's parents may recover for the expenses of the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages, and loss of consortium. (83 A.L.R.3d 15, 29-30.) There is sharp disagreement, however, on the question involved here: whether plaintiffs may recover as damages the costs of rearing a healthy child.

There are courts> which have allowed the recovery of the cost of rearing a child on the ground that such expense is a foreseeable consequence of the negligence. Those courts> also have held that this recovery may be offset, however, by an amount representing the benefits received by the parents from the parent-child relationship. See Stills v. Gratton (1976), 55 Cal.App.3d 698, 127 Cal.Rptr. 652; Ochs v. Borrelli (1982), 187 Conn. 253, 445 A.2d 883; Pierce v. DeGracia (1982), 103 Ill. App.3d 511; Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511; Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169; Mason v. Western Pennsylvania Hospital (1981), 286 Pa. Super. 354, 428 A.2d 1366.

In a substantially greater number of jurisdictions, however, courts> have denied recovery in suits for costs of rearing a child. See McNeal v. United States (4th Cir. 1982), 689 F.2d 1200 (interpreting Virginia law); White v. United States (D. Kan. 1981), 510 F. Supp. 146 (interpreting Georgia law); Boone v. Mullendore (Ala. 1982), 416 So.2d 718; Wilbur v. Kerr (1982), 275 Ark. 239, 628 S.W.2d 568; Coleman v. Garrison (Del. 1975), 349 A.2d 8; Public Health Trust v. Brown (Fla. App. 1980), 388 So.2d 1084; Wilczynski v. Goodman (1979), 73 Ill. App.3d 51; Maggard v. McKelvey (Ky. Ct. App. 1981), 627 S.W.2d 44; Kingsbury v. Smith (1982), 122 N.H. 237, 442 A.2d 1003; P. v. Portadin (1981), 179 N.J. Super. 465, 432 A.2d 556; Sorkin v. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300; Terrell v. Garcia (Tex. Civ. App. 1973), 496 S.W.2d 124, cert. denied (1974), 415 U.S. 927, 39 L.Ed.2d 484, 94 S.Ct. 1434; Rieck v. Medical Protective Co. (1974), 64 Wis.2d 514, 219 N.W.2d 242; Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288; see also Ball v. Mudge (1964), 64 Wn.2d 247, 391 P.2d 201.

Some of these courts> have pointed to the speculative nature of the damages. (E.g., Sorkin v. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300.) Others have expressed concern for the child who will learn that his existence was unwanted and that his parents sued to have the person who made his existence possible provide for his support. (E.g., Wilbur v. Kerr (1982), 275 Ark. 239, 628 S.W.2d 568.) Some courts> have decided that requiring the payment of rearing costs would impose an unreasonable burden upon a defendant, unreasonable because it would permit the plaintiffs to enjoy the benefits of parenthood, while shifting all of the expenses to the defendant. That burden, the courts> say, is out of proportion to the fault involved. (E.g., White v. United States (D. Kan. 1981), 510 F. Supp. 146; Kingsbury v. Smith (1982), 122 N.H. 237, 442 A.2d 1003.) Courts> have also stated that allowing such damages would open the door to various false claims and fraud. E.g., Rieck v. Medical Protective Co. (1974), 64 Wis.2d 514, 219 N.W.2d 242; Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288.

Too, many courts> have declared an unwillingness to hold that the birth of a normal healthy child can be judged to be an injury to the parents. That a child can be considered an injury offends fundamental values attached to human life. This was expressed with some sentimentality in Public Health Trust v. Brown (Fla. App. 1980), 388 So.2d 1084. The court, in denying recovery of rearing costs to a woman who alleged that she had became pregnant after a negligently performed tubal ligation, said:

"In holding that such a claim should not be recognized, we align ourselves with a clear majority of courts> in other jurisdictions which have decided the identical question [citations].

There is no purpose to restating here the panoply of reasons which have been assigned by the courts> which follow the majority rule. * * * In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. Even the courts> in the minority recognize, as the jury was instructed in this case, that the costs of providing for a child must be offset by the benefits supplied by his very existence. [Citations.] But it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable `benefits' of parenthood far outweigh any of the mere monetary burdens involved. [Citations.] Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the `unwanted' child for adoption. [Citations.] On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law. It is a rare but happy instance in which a specific judicial decision can be based solely upon a reflection of one of the humane ideals which form the foundation of our entire legal system. This, we believe, is just such a case." 388 So.2d 1084, 1085-86.

Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288, is another decision in which the court refused to permit the recovery of rearing costs. In rejecting the notion that would allow the recovery of rearing costs with an offset for the benefits of parenthood, it was observed:

"We believe that the benefits of the birth of a healthy, normal child outweigh the expense of rearing a child. The bond of affection between child and parent, the pride in a child's achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured ...

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