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08/17/87 Janice L. Siemieniec Et Al v. Lutheran General Hospital

August 17, 1987

JANICE L. SIEMIENIEC ET AL., APPELLEES

v.

LUTHERAN GENERAL HOSPITAL ET AL. (LUTHERAN GENERAL HOSPITAL ET AL., APPELLANTS)



SUPREME COURT OF ILLINOIS

512 N.E.2d 691, 117 Ill. 2d 230, 111 Ill. Dec. 302 1987.IL.1191

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

APPELLATE Judges:

JUSTICE RYAN delivered the decision of the court and the following opinion. In the decision of the court, JUSTICE MORAN joins in Parts I, II and III; JUSTICE MILLER specially concurs in Parts I and II and joins

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

This Cook County medical malpractice action involves interrelated issues dealing with the rights of parents and children to recover damages against health-care providers for what are commonly known as "wrongful birth" and "wrongful life" causes of action.

Janice Siemieniec conceived a child in February 1980. Mrs. Siemieniec's family history revealed that two of her deceased cousins had been afflicted with hemophilia. For purposes of general and descriptive information only, hemophilia is a genetic disorder caused by the deficiency or inactivity of coagulation factors needed for blood clotting. The hemophilias include both hemophilia A, or "classic hemophilia," in which the patient's plasma is deficient in factor VIII clotting activity, and hemophilia B, or "Christmas Disease," in which the patient's plasma is deficient in factor IX coagulation activity. Both types are transmitted as a sex-linked recessive trait on the X chromosome. The usual familial pattern shows that only males are affected, that these individuals are related only via their mothers, and that their mothers are unaffected. See Bachman, Recognition of Congenital Bleeding Disorders, in Hemophilia (D. Green ed. 1973); A. Bloom, The Hemophilias 5-9 (1982); Kasper, Hematologic Care, in Comprehensive Management of Hemophilia 3-6 (D. Boone ed. 1976).

Concerned with a possible occurrence of this inherited coagulation disorder in her already conceived child, Mrs. Siemieniec, during the first trimester of her pregnancy, sought genetic counseling at Lutheran General Hospital to determine the likelihood of this contingency. Dr. Carol Booth, the director of the Department of Genetics at Lutheran General, advised Mrs. Siemieniec of the availability of prenatal genetic diagnostic tests (amniocentesis and fetal blood sampling) to determine the risk of her child being afflicted with hemophilia. Mrs. Siemieniec purportedly informed Dr. Booth of her desire to terminate the pregnancy by abortion if there was a substantial risk of her bearing a hemophilic child.

Dr. Booth referred Mrs. Siemieniec to Dr. Juan Chediak, a staff physician in the Division of Hematology/Oncology at Michael Reese Hospital. Dr. Chediak supplied Mrs. Siemieniec with similar information regarding genetic diagnostic and prenatal testing procedures. Dr. Chediak also promised to check on whether Mrs. Siemieniec's cousins were registered hemophiliacs and to examine her deceased cousin's death certificate.

Two weeks later, Dr. Chediak sent a letter to Dr. Booth opining that the risk of Mrs. Siemieniec being a carrier of classic hemophilia was "very low." Dr. Booth then sent a copy of this letter to Mrs. Siemieniec. Based upon this information, the Siemienics exercised a conscious choice to proceed with the pregnancy. As a result, Adam Siemieniec was born on October 17, 1980, and after a bleeding episode, was diagnosed as a hemophiliac of the B type (Christmas Disease).

On the basis of these facts, Thomas and Janice Siemieniec, on their own behalf and on behalf of their son, Adam, filed a four-count complaint in the circuit court of Cook County against Dr. Booth, Dr. Chediak, Lutheran General Hospital, and Michael Reese Hospital. The complaint alleged that, as a direct and proximate result of the negligent diagnosis by the defendants and their failure to accurately advise Mrs. Siemieniec of the risk of the child's being born a hemophiliac, Adam Siemieniec was not aborted, to his personal injury and to the financial injury of his parents. The complaint sought damages for the extraordinary medical expenses the Siemieniecs will incur in caring for and treating Adam's hemophilic condition during his minority, for the extraordinary expenses Adam will incur for the care and treatment of his impaired physical condition after he reaches majority, and for the alleged emotional distress and mental anguish sustained by the Siemieniecs attendant to the raising and caring of a hemophiliac.

The circuit court denied the respective motions to dismiss filed by the defendants. Recognizing, however, that issues of law were present as to which there were substantial grounds for difference of opinion, the circuit court certified for appellate review three questions: (1) whether the child has a cause of action on his own behalf for extraordinary medical expenses during the age of majority; (2) whether the parents have a cause of action for the extraordinary medical expenses of the hemophilic child during his minority; and (3) whether the parents have a cause of action for negligent infliction of emotional distress.

The appellate court answered the first certified question in the affirmative: Adam has a cause of action in his own behalf for extraordinary medical expenses during his majority. (134 Ill. App. 3d 823, 831-32.) The appellate court also answered the second certified question in the affirmative: Adam's parents have a cause of action to recover extraordinary medical expenses during his minority. (134 Ill. App. 3d 823, 826-30.) Finally, in answer to certified question No. 3, the appellate court held that, "absent allegations and proof of intentional and outrageous conduct, or that [Adam's parents] were at a high risk to themselves of physical impact resulting in their physical injury or illness by reason of the emotional distress caused by a defendant's negligence, [Adam's parents] have no cause of action for emotional distress damages." (134 Ill. App. 3d 823, 831.) We allowed the defendants' petition for leave to appeal pursuant to our Rule 315 (94 Ill. 2d R. 315).

We emphasize at the outset the procedural posture in which this case is now before this court. The question presented for review is not whether the plaintiffs should ultimately prevail in this litigation, but rather, more narrowly, whether the complaint states legally cognizable causes of action. Since our review is limited to an evaluation of the sufficiency of the complaint, we must accept as true all well-pleaded facts. (See Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 280; Sierens v. Clausen (1975), 60 Ill. 2d 585, 589; O'Fallon Development Co. v. Ring (1967), 37 Ill. 2d 84, 88.) Accordingly, we accept, without expressing any opinion as to the defendants' liability, the allegations that the defendants failed to adequately inform Mrs. Siemieniec about various types of hemophilia, for one of which, the type with which Adam is afflicted, Christmas Disease, there is no reliable test; failed to inquire adequately into Mrs. Siemieniec's own medical and health background; and failed to obtain the death certificate of Mrs. Siemieniec's cousin, which would have disclosed that he had a factor IX clotting disorder, the same as Adam. We further accept the allegation that if Mrs. Siemieniec had been accurately advised of the chances that her already conceived child would be afflicted with hemophilia, then she would have terminated the pregnancy by abortion.

We turn now to the issues before us, whether actions for wrongful life and wrongful birth should be recognized in Illinois. The terms "wrongful life" and "wrongful birth" have been applied to a wide variety of medical malpractice actions brought by parents or by infants for damages growing out of unexpected or unwanted birth, or out of birth under conditions of disability or disadvantage. Because the courts and the commentators have been less than precise in their utilization of these terms, the legal and theoretical distinctions between the torts often have been blurred. Hence, thoughtful analysis of the validity of wrongful birth and wrongful life as emerging legal concepts requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated.

"Wrongful birth" refers to the claim for relief of parents who allege they would have avoided conception or terminated the pregnancy by abortion but for the negligence of those charged with prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child. The underlying premise is that prudent medical care would have detected the risk of a congenital or hereditary genetic disorder either prior to conception or during pregnancy. As a proximate result of this negligently performed or omitted genetic counseling or prenatal testing, the parents were foreclosed from making an informed decision whether to conceive a potentially handicapped child or, in the event of a pregnancy, to terminate the same. See Trotzig, The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14 Fam. L.Q. 15, 16-17 (1980); Comment, Damages For Wrongful Birth and Wrongful Pregnancy in Illinois, 15 Loy. U. Chi. L.J. 799, 799-800 (1984); Comment, Wrongful Life and Wrongful Birth Causes of Action -- Suggestions for a Consistent Analysis, 63 Marq. L. Rev. 611, 621-23 (1980); Comment, " Wrongful Life": The Right Not to be Born, 54 Tul. L. Rev. 480, 484-85 (1980); see generally 1 Dooley, Modern Tort Law sec. 14.06 (1982).

The corresponding action by or on behalf of an infant who suffers from a genetic or congenital disorder is denominated one for "wrongful life." The child claims that the physician or other health-care provider: (1) failed to accurately perform genetic screening tests prior to conception or to correctly inform the prospective parents of the hereditary nature of certain genetic disorders; (2) failed to accurately advise, counsel, or test his parents during pregnancy concerning genetic or teratogenic risks associated with childbirth suggested by maternal age, physical condition, family medical history, or other circumstances particular to the parents; or (3) failed to perform a surgical procedure intended to prevent the birth of a congenitally or genetically defective child. In a wrongful life case, the child does not assert that the negligence of the defendants caused his inherited or congenital abnormality, that the defendants could have done anything that would have decreased the possibility that he would be born with such defects, or that he ever had a chance to be normal. The essence of the child's claim is that the medical professional's breach of the applicable standard of care precluded an informed parental decision to avoid his conception or birth. But for this negligence, the child allegedly would not have been born to experience the pain and suffering attributable to his affliction. See DeVries & Rifkin, Wrongful Life, Wrongful Birth, and Wrongful Pregnancy: Judicial Divergence in the Birth-Related Torts, 20 Forum 207, 211 (1985); Rogers, Wrongful Life and Wrongful Birth: Medical Malpractice in Genetic Counseling & Prenatal Testing, 33 S.C. L. Rev. 713, 715-16 (1982); Comment, A Preference for Nonexistence: Wrongful Life and a Proposed Tort of Genetic Malpractice, 55 S. Cal. L. Rev. 477 n.2 (1982); Comment, Wrongful Life: A Misconceived Tort, 15 U.C. Davis L. Rev. 447, 450 n.13 (1981); Note, Wrongful Life: A Modern Claim Which Conforms to the Traditional Tort Framework, 20 Wm. & Mary L. Rev. 125 (1978); Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 Yale L.J. 1488, 1500-02 (1978); see generally Am. Jur. 2d New Topic Service, Right to Die; Wrongful Life sec. 63 (1979 & Supp. 1986).

To be distinguished from the actions before us are those in which recovery is sought for what is appropriately labeled "wrongful conception or pregnancy." Liability is based either on the physician's negligence in performing a sterilization procedure or an abortion or the pharmacist's or pharmaceutical manufacturer's negligence in preparing or dispensing a contraceptive prescription. The essence of the wrong for which compensation is sought in some cases is the birth of a healthy and normal -- albeit, unplanned and unwanted -- child. See W. Prosser & W. Keaton, Torts sec. 55, at 372-73 (5th ed. 1984); Hampton, The Continuing Debate Over the Recoverability of the Costs of Child-Rearing in "Wrongful Conception" Cases: Searching for Appropriate Judicial Guidelines, 20 Fam. L.Q. 45, 47-48 (1986); Holt, Wrongful Pregnancy, 33 S.C. L. Rev. 759, 763-92 (1982); Kashi, The Case of the Unwanted Blessing: Wrongful Life, 31 U. Miami L. Rev. 1409, 1410-19 (1977); Robertson, Civil Liability Arising From "Wrongful Birth" Following an Unsuccessful Sterilization Operation, 4 Am. J.L. & Med. 131, 132-35 (1978); see generally Annot., 83 A.L.R.3d 15 (1978).

Part I. Child's Claim for "Wrongful Life"

Having defined the scope of our inquiry, we first consider the action on behalf of the son, Adam, for the extraordinary medical expenses which he expects to incur after reaching his majority. Although the cause of action at issue has attracted a special name -- "wrongful life" -- Adam's basic contention is that his action is simply one form of the familiar medical or professional malpractice action. The gist of Adam's claim is that he has suffered harm or damage as a result of the defendants' negligent performance of their professional tasks, and that, as a consequence, he is entitled to recover the extraordinary expenses associated with his disability under generally applicable common law tort principles.

The overwhelming majority of jurisdictions, including Illinois, have rejected claims for relief brought by or on behalf of genetically or congenitally impaired children against medical professionals whose negligent failure to predict or to diagnose their congenital or genetic disease was allegedly the proximate cause of their birth and having to live in an impaired condition. See, e.g., Phillips v. United States (D.S.C. 1980), 508 F. Supp. 537 (applying South Carolina law) (Down's syndrome); Moores v. Lucas (Fla. App. 1981), 405 So. 2d 1022 (Larsen's syndrome); Blake v. Cruz (1984), 108 Idaho 253, 698 P.2d 315 (congenital rubella syndrome); Goldberg v. Ruskin (1986), 113 Ill. 2d 482 (Tay-Sachs disease); Bruggeman v. Schimke (Kan. 1986), 718 P.2d 635 (Down's syndrome); Strohmaier v. Associates in Obstetrics & Gynecology, P.C. (1982), 122 Mich. App. 116, 332 N.W.2d 432 (congenital rubella syndrome); Azzolino v. Dingfelder (1985), 315 N.C. 103, 337 S.E.2d 528 (Down's syndrome); Smith v. Cote (1986), 128 N.H. 231, 513 A.2d 341 (congenital rubella syndrome); Becker v. Schwartz (1978), 46 N.Y.2d 401, 386 N.E.2d 807 (Down's syndrome and polycystic kidney disease); Ellis v. Sherman (1986), 512 Pa. 14, 515 A.2d 1327 (congenital neurofibromatosis); Nelson v. Krusen (Tex. 1984), 678 S.W.2d 918 (Duchenne muscular dystrophy); James G. v. Caserta (W. Va. 1985), 332 S.E.2d 872 (Down's syndrome); Dumer v. St. Michael's Hospital (1975), 69 Wis. 2d 766, 233 N.W.2d 372 (congenital rubella syndrome); see also Elliott v. Brown (Ala. 1978), 361 So. 2d 546 (wrongful life claim on behalf of a seriously deformed child born following a negligently performed vasectomy dismissed for failure to state a legally cognizable cause of action); Miller v. Du Hart (Mo. App. 1982), 637 S.W.2d 183 (wrongful life claim of a child born after a negligently performed bilateral tubal ligation dismissed for failure to state a legally cognizable cause of action); Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288 (wrongful life claim on behalf of a child born after an unsuccessful tubal ligation dismissed for failure to state a legally cognizable cause of action). But see Turpin v. Sortini (1982), 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337; Continental Casualty Co. v. Empire Casualty Co. (Colo. App. 1985), 713 P.2d 384; Procanik v. Cillo (1984), 97 N.J. 339, 478 A.2d 755; Harbeson v. Parke-Davis, Inc. (1983), 98 Wash. 2d 460, 656 P.2d 483.

The systematic rejection of wrongful life claims rests upon two intimately related grounds. The first ground is the courts' unwillingness to hold that a child can recover damages for achieving life. The threshold problem has been the assertion by the infant plaintiffs not that they should not have been born without defects, but that they should not have been born at all. The essence of the infant's cause of action is that the negligent conduct of the defendants deprived the child's mother from obtaining an abortion which would have terminated its existence. Resting on the belief that human life, no matter how burdened, is, as a matter of law, always preferable to nonlife, the courts have been reluctant to find that the infant has suffered a legally cognizable injury by being born with a congenital or genetic impairment as opposed to not being born at all. See Elliott v. Brown (Ala. 1978), 361 So. 2d 546, 547-48; Blake v. Cruz (1985), 108 Idaho 253, 260, 698 P.2d 315, 322; Bruggeman v. Schimke (Kan. 1986), 718 P.2d 635, 640-42; Smith v. Cote (1986), 128 N.H. 231, 248, 513 A.2d 341, 352; Becker v. Schwartz (1978), 46 N.Y.2d 401, 411, 386 N.E.2d 807, 812; Azzolino v. Dingfelder (1985), 315 N.C. 103, 110, 337 S.E.2d 528, 533; Ellis v. Sherman (1986), 512, Pa. 14, 19, 515 A.2d 1327, 1329.

The second basis relied upon by those courts refusing to recognize a cause of action for wrongful life is the difficulty, if not impossibility, of measuring appropriate damages. The traditional tort remedy is compensatory in nature. The basic rule of tort compensation is that the plaintiff be put in the position that he would have been in absent the defendant's negligence. The damages recoverable on behalf of a child for wrongful life are limited to those necessary to restore the child to the position he would have occupied were it not for the alleged malpractice of the physician or other health-care provider. In a wrongful life case, there is no allegation that but for the defendant's negligence the child would have had a healthy, unimpaired life. Instead, the claim is that without the defendants' negligence, the child never would have been born. Thus, the cause of action involves a calculation of damages dependent upon the relative benefits of an impaired life as opposed to no life at all, "[a] comparison the law is not equipped to make." Becker v. Schwartz (1978), 46 N.Y.2d 401, 412, 386 N.E.2d 807, 812; see Moores v. Lucas (Fla. Dist. App. 1981), 405 So. 2d 1022, 1025; Strohmaier v. Associates in Obstetrics & Gynecology, P.C. (1982), 122 Mich. App. 116, 120-22, 332 N.W.2d 432, 434-35; Nelson v. Krusen (Tex. 1984), 678 S.W.2d 918, 924-25; Dumer v. St. Michael's Hospital (1975), 69 Wis. 2d 766, 773, 233 N.W.2d 372, 375-76.

In holding that Adam has a cause of action in his own behalf for the extraordinary medical expenses during his majority, the appellate court in this case emphasized that the "action articulated on Adam's behalf claims a real rather than a theoretical injury. It is definable by recognized tort standards and seeks recompense only for extraordinary expenses, not damages for being born impaired as against the value of not being born at all. (See, e.g., Procanik v. Cillo (1984), 97 N.J. 339, 478 A.2d 755.) Adam's complaint does not require ontological Discussion; merely the right to prove, if he can, what his unusual condition will cost when he reaches majority." (134 Ill. App. 3d 823, 834.) Citing Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, for the proposition that an infant has a right to be free from injuries foreseeably caused by a breach of duty to the child's mother, the appellate court concluded that "the health care providers involved in the present case could have reasonably foreseen that [Adam's] life would be impaired by being born with hemophilia, at least to the extent of requiring extraordinary treatment with concomitant expenses." 134 Ill. App. 3d 823, 833.

The basic fallacy of the appellate court's analysis is that it ignores the essential nature of the defendants' alleged wrong and obscures a critical difference between wrongful life actions and the ordinary prenatal-injury case. In an ordinary prenatal-injury case, if the defendant had not been negligent, then the child would have been born healthy. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348 (recognizing a cause of action on behalf of a child who suffered severe prenatal injuries as a result of defendants' negligent administration of an Rh-positive blood transfusion to her Rh-negative mother nine years prior to the child's conception); see also Annot., 91 A.L.R.3d 316 (1979).) In the present case, by contrast, the undisputable tragic fact is that Adam never had a chance to be born as a whole, functional human being without hemophilia. It is alleged that if the defendants would have performed their tasks properly, then an abortion would have been procured. However, in such an event, Adam never would have come into existence. Because children with genetic disorders such as Adam are impaired from the moment of conception, it is impossible for them to have a fundamental right to be born as whole individuals. Hence, the only alternative to their suffering, and the standard against which their compensation must be determined, is nonexistence. (See Kelley, Wrongful Life, Wrongful Birth, and Justice in Tort Law, 4 Wash. U.L.Q. 919, 934 (1979); Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke L.J. 1401, 1444; Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 Va. L. Rev. 405, 440 (1983).) Recognition of a cause of action for wrongful life in this case would therefore require this court to find that Adam had an interest in avoiding his own birth, i.e., that there is a fundamental legal right not to be born when birth would necessarily entail a life of hardship. (See Comment, Wrongful Life and Wrongful Birth Causes of Action -- Suggestions for a Consistent Analysis, 63 Marq. L. Rev. 611, 620 (1980).) Such a finding, however, would essentially require us to possess the divine ability to determine what defects should prevent an embryo from being allowed life so that denial of the opportunity to terminate the existence of such a defective child in embryo supports a cause of action. See Goldberg v. Ruskin (1986), 113 Ill. 2d 482, 489 ("The argument that the child was in some meaningful sense harmed by being born and would have been better off not being born suggests that there is a perspective, apart from our life and world, from which one can stand and say that he finds nonexistence preferable to existence").

The New York Court of Appeals in Becker v. Schwartz (1978), 46 N.Y.2d 401, 386 N.E.2d 807, aptly summarized the dilemma faced by a court when it is confronted with a claim by a physically or mentally impaired child that he sustained injury in being born with a congenital or genetic ailment as opposed to not being born at all.

"Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?" 46 N.Y.2d 401, 411, 386 N.E.2d 807, 812.

Elliott v. Brown (Ala. 1978), 361 So. 2d 546, Smith v. Cote (1986), 128 N.H. 231, 513 A.2d 341, and Ellis v. Sherman (1986), 512 Pa. 14, Pa. 515 A.2d 1327, are also cases in which the courts discussed the basis for the unwillingness to find that a defective child had sustained a legally cognizable injury in being born with physical deformities as opposed to not being born at all.

In rejecting the wrongful life claim of a seriously deformed child born following a negligently performed vasectomy, the Supreme Court of Alabama in Elliott observed:

"Upon what legal foundation is the court to determine that it is better not to have been born than to be born with deformities? If the court permitted this type of cause of action, then what criteria would be used to determine the degree of deformity necessary to state a claim for relief. We decline to pronounce judgment in the imponderable area of nonexistence." (Elliott v. Brown (Ala. 1978), 361 So. 2d 546, 548.)

In Smith, the New Hampshire Supreme Court, in denying the wrongful life claim of a child born with congenital rubella syndrome, couched ...


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