a terminally-ill pregnant woman, during the course of her
pregnancy, from terminating life sustaining treatment until the
child is born. Ill.Rev.Stat. ch. 110 1/2, § 703(c).
Additionally, Illinois tort law has recognized the right to
bring an action based on injuries sustained to the fetus. See
Renslow v. Mennonite Hospital, 67 Ill.2d 348, 10 Ill.Dec. 484,
367 N.E.2d 1250 (1977). In Renslow, the Illinois Supreme Court
surveyed the caselaw on whether a plaintiff may recover for
prenatal injuries. The court concluded that the retreat from the
common law rule barring recovery to an infant because the infant
has no "independent legal significance," expressed in Dietrich v.
Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884)
and Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638
(1900), "was perhaps the most rapid reversal of a common law
tradition." Renslow, 67 Ill.2d at 351, 10 Ill.Dec. at 486, 367
N.E.2d at 1252. The Illinois Supreme Court overruled Allaire in
Amann v. Faidy, 415 Ill. 422, 432, 114 N.E.2d 412, 421 (1953),
holding that right of action for the wrongful death of a viable
fetus injured, in utero, exists if the child was born alive and
subsequently died. See also Rodriquez v. Patti, 415 Ill. 496,
114 N.E.2d 721 (1953). The court extended the right to recover
damages for injuries suffered, in utero, but where the fetus was
thereafter born dead. Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368,
304 N.E.2d 88 (1973). The Renslow Court went on to reject
the viability limitation because it found viability to be an
inherently imprecise and unsatisfactory criterion to determine
the extent of liability; it found viability to be an uncertain
limitation which often precluded recovery in the most meritorious
claims. Renslow, 67 Ill.2d at 352, 10 Ill.Dec. at 486-87, 367
N.E.2d at 1252-53. The court then held that a fetus may recover
for injuries suffered as a result of a wrong occuring prior to
conception. Id. "We believe that there is a right to be born free
from prenatal injuries caused by a breach of duty owed to the
child's mother." Id. 67 Ill.2d at 357, 10 Ill.Dec. at 489, 367
N.E.2d at 1255.
In light of the strong Illinois policy favoring protection of a
fetus, and in light of Illinois' recognition of a protectable
interest in the fetus in ordinary malpractice claims, even prior
to conception, we hold that Joshua's mother's physicians owed a
duty of informed disclosure not only to Joshua's mother, but to
Joshua as well; in this situation the physician had two patients.
The creation of a duty is "an expression of the sum total of
those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection." Renslow, 67
Ill.2d at 356, 10 Ill.Dec. at 488, 367 N.E.2d at 1254, (quoting
Prosser, Torts, sec. 53, at 325-26 (4th ed. 1971)). If a
physician owes a duty to a parent and unborn child for injuries
to the child prior to its conception, then a physician certainly
owes a duty to an unborn fetus, who is alleged to have sustained
quadriplegia, moments before its birth.
The injury involved in this case was sustained by the infant
Joshua. The risks coincident with the prescribed treatment flowed
primarily to the infant. The physician must have a duty to
disclose to his patient risks not only to the mother but to the
child as well. In making an informed decision, Joshua's natural
mother was concerned not only about risk of the treatment to her
own safety but also to her unborn child. Indeed, the risks to her
child may have been paramount in her concerns. The complaint
states that only upon being assured of delivery of a "healthy
baby" did Joshua's natural mother agree to such procedures. In
such situations the failure to inform the natural mother of risks
inherent in a procedure subjected both the mother and her unborn
child to unwarranted risks of unwanted treatment. It is merely
fortuitous that only one of the physician's patients was harmed.
Both Joshua and Joshua's mother may bring an action based on
informed consent for failure of the defendant to obtain from
Joshua's mother an
informed consent.*fn2 "As in any other tort case, the defendant
must bear the burden for injuries resulting from its own
negligence. [To hold otherwise] would in effect immunize from
liability those in the medical field from providing inadequate
guidance to persons who would choose [alternative treatment]."
Robak v. United States, 658 F.2d 471, 476 (7th Cir. 1981).
Because Joshua may pursue this cause of action, Joshua's legal
guardian may pursue it on his behalf. Defendants' motions to
dismiss are denied.
IT IS SO ORDERED.