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Siemieniec v. Lutheran General Hospital

OPINION FILED JUNE 28, 1985.

JANICE L. SIEMIENIEC ET AL., PLAINTIFFS-APPELLEES,

v.

LUTHERAN GENERAL HOSPITAL ET AL., DEFENDANTS-APPELLANTS (DR. CAROL BOOTH ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Janice and Thomas Siemieniec, brought suit individually and on behalf of their son Adam against defendants, Lutheran General and Michael Reese Hospitals and two physicians. They allege that although they consulted with defendant physicians about whether a prospective child of theirs could be born a hemophiliac, they were assured by defendants that the possibility of this happening was at "low risk." Adam subsequently was born with hemophilia.

The four-count, verified complaint seeks damages for extraordinary medical expenses Janice and Thomas will incur in caring for Adam's condition as well as for negligent infliction of emotional distress, and damages for extraordinary expenses Adam will incur for treating his condition after he reaches adulthood. Answers were filed by the various defendants. The circuit court denied defendants' subsequently filed motions to dismiss the complaint but recognized that issues of law were presented concerning which there were substantial grounds for differences of opinion. Three questions were certified for review by this court under Supreme Court Rule 308 (87 Ill.2d R. 308) which contemplate whether: (1) the parents have a cause of action for the extraordinary medical expenses of the hemophiliac child during his minority; (2) the parents have a cause of action for negligent infliction of emotional distress; and (3) the child has a cause of action on his own behalf for extraordinary medical expenses during the age of majority. We have rearranged the order of the questions for purposes of analysis and review.

The pertinent facts alleged in the complaint follow. For the purpose of the motions to dismiss they must be taken as true. (Wilczynski v. Goodman (1979), 73 Ill. App.3d 51, 54, 391 N.E.2d 479; Goldberg v. Ruskin (1984), 128 Ill. App.3d 1029, 1032-33, 471 N.E.2d 530.) Janice became pregnant and was concerned about the possibility of her baby being born with hemophilia because two of her cousins were afflicted with the disease. She sought medical advice from Dr. Carol Booth at Lutheran General, who advised her on March 6, 1980, of diagnostic tests which would be performed in time for Janice to decide whether or not to abort the pregnancy if the tests proved positive. Janice indicated that, if positive, she would abort. At Dr. Booth's referral, Janice later consulted with Dr. Juan Chediak at Michael Reese. He gave her the same information regarding testing. Dr. Chediak also promised both to check on whether Janice's cousins were registered hemophiliacs and to examine her deceased cousin's death certificate. On March 28, 1980, Dr. Chediak sent a letter to Dr. Booth stating that the risk of Janice being a carrier of factor VIII hemophilia was "very low." Dr. Booth then sent a copy of this letter to Janice. On October 14, 1980, Adam Siemieniec was born and, after a bleeding episode, he was diagnosed as a factor IX hemophiliac. *fn1

The complaint also alleged that defendants were under a duty to render competent diagnostic and consultive services which was breached by failure to adequately inform Janice about various types of hemophilia, for one of which, factor IX, there is no reliable test, and by failure to inquire adequately into her own health background. Plaintiffs, individually in counts I and II, seek to recover from defendants the extraordinary medical expenses that they will incur during their son's minority and for their emotional distress. Counts III and IV, brought by Janice and Thomas on Adam's behalf, seek recovery from defendants for the extraordinary medical expenses that he will incur as an adult.

I

Defendants contend that parents cannot maintain an action for "wrongful birth" under Illinois law, arguing that Adam's parents do not have a cause of action for the extraordinary medical expenses incurred during his minority. It should be observed at once that nowhere in their complaint do Janice and Thomas assert that they are seeking damages for wrongful birth. Their sole claim for damages is for the extraordinary expenses they anticipate as a result of Adam's impaired physical condition. In any event, the sole authority for defendants' argument is the supreme court's decision in the consolidated cases of Cockrum v. Baumgartner and Raja v. Tulsky (1983), 95 Ill.2d 193, 447 N.E.2d 385, cert. denied sub nom. Raja v. Michael Reese Hospital (1983), 464 U.S. 846, 78 L.Ed.2d 139, 104 S.Ct. 149. They note that there a wrongful-birth cause of action was rejected on the basis of the following four factors: (1) the speculative nature of damages; (2) the concern that a child will discover that he is unwanted; (3) it is unreasonable to place the burden of rearing a child on defendant, while allowing plaintiffs to enjoy the benefits of having a child; and (4) the possibility of fraudulent claims. 95 Ill.2d 193, 198.

• 1 It is useful here to distinguish between "wrongful pregnancy" cases, such as Cockrum, and "wrongful birth" cases, such as the case before us. In a wrongful-pregnancy action, the alleged injury to the parent is the birth of the unplanned or unwanted, but usually normal and healthy, child, resulting from the negligence of a doctor or other health care provider in performing an abortion, sterilization, or in filling a prescription for contraceptives, whereas, in a wrongful-birth action, the injury usually claimed is the birth of a seriously handicapped or diseased child whose birth might have been prevented except for the negligence of those charged with prenatal testing, genetic prognosticating and counseling parents as to the likelihood of giving birth to a physically or mentally impaired or abnormal child. *fn2 Although in each instance suit is brought by the parents, the resultant effects of the subject birth are usually dramatically different. Not to be confused with the foregoing is still another type of action known as "wrongful life," brought by parents on the child's behalf, claiming that because of defendant's negligence his adult life will be burdened with an impaired existence occasioned by the abnormal or unusual health condition with which he must live. We will treat this issue in part III of this opinion.

• 2 The utility in keeping the concepts described above separate and distinct for analytical purposes lies in the appropriate resolutions of questions of duty, asserted violations of that duty, proximate causes of the injuries sustained, and damages cognizable as a result of such injuries, with public policy as the frame of reference.

Although defendants acknowledge that Cockrum involved a healthy child, they argue the applicability of its rationale to the case at bar for the following reasons: the Cockrum court's declaration that the "benefit of life should not be outweighed by the expense of supporting it" (Cockrum v. Baumgartner (1983), 95 Ill.2d 193, 201); the pro-life policy announced in the Illinois abortion law (Ill. Rev. Stat. 1983, ch. 38, par. 81-21), as reflected in Cockrum, when the court declared that public policy demands the preservation and development of family relations (95 Ill.2d 193, 201); and that the United States Supreme Court's decision in Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705, does not confer a right upon plaintiff to pursue a civil action because an abortion was not performed. Defendants' reliance upon Cockrum, however, is misplaced in this context.

The economic relief sought in the present case is related solely to the physical defects with which Adam was born, allegedly as a result of negligent advice, and the extraordinary, unanticipated expenses which Janice and Thomas, his parents, will incur as a result thereof, a matter standing distinctly apart from the issue raised in Cockrum: whether the birth of a normal, healthy, but unwanted child can be considered as compensable damages to his parents because of anticipative costs incurred in his ordinary upbringing involving no extraordinary expenses, which the supreme court answered in the negative in Cockrum, as did this court in Wilczynski v. Goodman (1979), 73 Ill. App.3d 51, 391 N.E.2d 479, cited and quoted with approval in Cockrum v. Baumgartner (1983), 95 Ill.2d 193, 201. The Cockrum plaintiffs sought damages for the entire general expenses of raising a normal, healthy child, in addition to the mothers' damages for pain and suffering, plus medical expenses and lost time; here, the parents are willing to absorb those expenses themselves and seek only the costs for Adam's extraordinary medical expenses occasioned by the congenital defect. The Cockrum plaintiffs did not rely on defendant physicians' advice in carrying their child to term; there was such asserted reliance in the instant case. In Cockrum, the medical error of a failed sterilization did not deprive plaintiffs of their rights to make an informed abortion decision; in the instant case, the alleged failure to prognosticate probable hemophilia in the unborn child deprived plaintiffs of the information necessary for such a decision and its attendant extraordinary financial consequences.

Considering the concerns of our supreme court in Cockrum, a wrongful-pregnancy action, we note that the first problem, the speculative nature of damages, does not apply here. This is not only because the action is not based upon wrongful pregnancy as in Cockrum, involving philosophical and ontological issues weighing the value, if any, of no existence with no attendant expenses, versus a normal, healthy existence with the usual expenses of raising an unplanned or unwanted child. Here, Janice and Thomas accept Adam's existence and are willing to expend whatever funds are necessitated for ordinary upbringing. They seek only the extraordinary expenses of treating Adam's hemophilia, which is well within the methods of proof employed in personal injury cases. See, e.g., Jacobs v. Theimer (Tex. 1975), 519 S.W.2d 846, 849.

The concern in Cockrum, that the child will discover that it was not wanted is unwarranted here. The Siemieniecs have asserted that they did want a child; they only sought to avoid burdening their child with a hemophiliac condition. The Cockrum court's desire to avoid placing the undue burden of rearing costs on a defendant also need not be considered in the instant case. Plaintiffs here do not seek to have defendants pay ordinary costs incurred for raising Adam, but rather liabilities that will be incurred for his extraordinary medical expenses. (Cf. Wilczynski v. Goodman (1979), 73 Ill. App.3d 51, 391 N.E.2d 479.) The opportunities for fraudulent claims under these circumstances are no greater than in any other personal injury claim.

In wrongful-birth settings, as contrasted to wrongful-pregnancy cases, courts in other jurisdictions have acknowledged a causal link between a physician's failure to diagnose or inform parents of potential birth defects and injury to the parents' interests. Harbeson v. Parke-Davis, Inc. (1983), 98 Wn.2d 460, 656 P.2d 483; Robak v. United States (7th Cir. 1981), 658 F.2d 471 (applying Alabama law); Naccash v. Burger (1982), 223 Va. 406, 290 S.E.2d 825; Schroeder v. Perkel (1981), 87 N.J. 53, 432 A.2d 834; Speck v. Finegold (1981), 497 Pa. 77, 439 A.2d 110; Berman v. Allan (1979), 80 N.J. 421, 404 A.2d 8; Becker v. Schwartz (1978), 46 ...


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