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05/03/96 ALICE WILLIAMS AND JERRY WILLIAMS v.

May 3, 1996

ALICE WILLIAMS AND JERRY WILLIAMS, PLAINTIFFS-APPELLANTS,
v.
THE UNIVERSITY OF CHICAGO HOSPITALS, A NOT-FOR-PROFIT CORPORATION, LANE MERCER, M.D. AND ANN ZIELINSKI. M.D., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court Cook County. The Honorable Leonard L. Levin, Judge Presiding.

As Modified on Denial of Rehearing July 5, 1996.

The Honorable Justice Egan delivered the modified opinion of the court: McNAMARA, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

MODIFIED OPINION ON DENIAL OF REHEARING

The Honorable Justice EGAN delivered the modified opinion of the court:

We granted this interlocutory appeal pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)) to determine the extent of damages a plaintiff may recover in a negligence action when a failed tubal ligation results in a birth of a child with a genetic or congenital disorder.

According to the allegations of the complaint, which for the purposes of this appeal we must take as true, the facts are as follows.

The plaintiffs, Alice Williams (Alice) and Jerry Williams, are husband and wife. In 1984 Alice sought a tubal ligation because she had experienced complications during her previous pregnancies, including a possible ectopic pregnancy in March 1979; a stillborn birth in June 1982; as well as the premature birth of a son in February 1984, who was later diagnosed as hyperactive and learning-disabled. Alice later married Jerry Williams. Jerry Williams is not the father of the child born in 1984. The defendant Dr. Lane Mercer performed the tubal ligation procedure on July 20, 1984. Between July 20, 1984 and May 1991, Alice returned for treatment on numerous occasions and the defendants failed to inform her that the tubal ligation had been improperly performed and was not complete or effective.

In May 1991, Alice discovered she was pregnant. In October 1991, she gave birth to a son, Emmanuel, who has been diagnosed with Attention Deficit Hyperactivity Disorder, a genetic or congenital disorder.

The plaintiffs claim that the defendants' negligent performance and monitoring of Alice's tubal ligation will require them to incur in behalf of Emmanuel "extraordinary medical care *** for many months and years subsequent to delivery including to the age of majority, for many months and years beyond the age of majority based on the profound mental and physical impairment of said child." Discovery has revealed that the "extraordinary medical care" required by Emmanuel consists primarily of psychological treatment and special education.

The defendants filed motions in limine seeking (1) to exclude evidence of the extraordinary medical care needed by Emmanuel; and (2) to exclude expert testimony as to the cost of educating Emmanuel which would be borne by the plaintiffs. The expert's opinion was that the public school system would not be able to provide adequate counseling and education for Emmanuel.

The trial judge denied the defendants' first motion; he held that because the costs the plaintiffs sought were extraordinary costs of child-rearing, they are recoverable damages under the supreme court's decision in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 512 N.E.2d 691, 111 Ill. Dec. 302 (1987). The judge granted the defendants' second motion; he held that because the Illinois Constitution requires the State to pay for the costs of a child's education, there was no basis for expert testimony regarding the State's inability to do so. The trial judge certified the issues raised by both motions, stating the questions for our review as follows:

"(1) Do the parents of a child born following a failed tubal ligation have a cause of action for special damages against the treating physicians and hospital for the extraordinary psychological and/or educational expenses which may be incurred in raising their child, where the complaint alleges that Mrs. Williams' medical history included a hyperactive son by another father, but there are no allegations or proof that the Defendants proximately caused Emmanuel Williams' Attention Deficit Hyperactivity Disorder?

(2) Where plaintiff[s'] expert testifies that the public school will more likely than not fail to provide the appropriate special education, special therapy or mental treatment, should the plaintiff[s] be allowed to present evidence, as part of their damages, showing the future extraordinary ...


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