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10/23/97 ALICE WILLIAMS ET AL. v. UNIVERSITY

October 23, 1997

ALICE WILLIAMS ET AL., APPELLANTS,
v.
UNIVERSITY OF CHICAGO HOSPITALS ET AL., APPELLEES.



Appeal from the Appellate Court, First District of Cook County. Case Numbers: AC1-94-2658, TR92L14234, AC1-94-2697. Hon. Leonard L. Levin, Trial Judge.

The Honorable Justice Miller delivered the opinion of the court. Justice Harrison, dissenting.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The plaintiffs, Alice and Jerry Williams, who are husband and wife, brought the present action in the circuit court of Cook County seeking compensation for the extraordinary expenses of raising a child who was born following a failed sterilization operation performed on Mrs. Williams. The plaintiffs allege that the child has attention deficit hyperactivity disorder, a congenital condition, which will require him to receive psychological treatment and special educational training in the future. Ruling on two pretrial motions, the trial judge concluded that the plaintiffs could recover the extraordinary expenses they will incur in treating their son's condition but could not present certain testimony describing educational needs he will have. The judge certified those two questions for interlocutory appeal under Supreme Court Rule 308. The appellate court held that the plaintiffs could not recover the extraordinary child-rearing expenses they seek; with that determination the appellate court found it unnecessary to resolve the second certified question. 281 Ill. App. 3d 1057. We allowed the plaintiffs' petition for leave to appeal (155 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The procedural history of this case requires only a brief summary. According to the plaintiffs' fourth amended complaint, Mrs. Williams underwent a tubal ligation at the University of Chicago Hospitals in July 1984. The complaint alleges that her medical history included a possible ectopic pregnancy in 1979, a stillborn child in 1982, a premature birth in 1984, and "at least one hyperactive and learning disabled child." Defendant Dr. Lane Mercer performed the sterilization procedure, and the plaintiff saw Dr. Mercer and, later, defendant Dr. Ann Zielinski, over the course of the next seven years. During that time, at subsequent appointments, the defendants never informed Mrs. Williams that the tubal ligation was other than successful. Following a laparoscopy performed in 1988 by Dr. Mercer and Dr. Zielinski, Mrs. Williams was told that the devices used in the procedure were properly placed. Mrs. Williams learned in May 1991 that she was pregnant, however, and she gave birth in October 1991 to the child who is the subject of the instant appeal, Emmanuel. According to the complaint, Emmanuel has attention deficit hyperactivity disorder and will require psychological treatment and special educational training in the years ahead. The plaintiffs brought the present negligence action against the University of Chicago Hospitals and Drs. Mercer and Zielinski, seeking recovery of those extraordinary expenses.

The origins of this appeal lie in certain pretrial rulings made by the trial judge. Before trial, the defendants filed motions in limine seeking to limit the evidence that could be introduced by the plaintiffs. Although the motions are not included in the record on appeal, the record does contain transcripts of the hearings on the motions. Following argument by the parties, the trial judge concluded that the plaintiffs could recover damages for the extraordinary costs they will incur as a result of the child's condition. The trial judge also ruled, however, that the plaintiffs could not present expert testimony regarding certain educational services that the child will require, in light of the state's constitutional duty to provide a free public education to children.

At the parties' request, the trial judge certified the following two questions for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):

"[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 plaintiffs be allowed to present evidence, as part of their damages, showing the future extraordinary educational expenses of the abnormal child in a wrongful pregnancy action?"

The appellate court accepted the case for review (155 Ill. 2d R. 308(a)) and answered the first question in the negative. 281 Ill. App. 3d 1057. The appellate court believed that the defendants' alleged negligence was not the proximate cause of the injury complained of, and the court therefore concluded that the plaintiffs could not recover from the defendants the extraordinary costs of raising the child at issue in this case. The court's decision rendered moot the second question certified by the trial judge. We granted the plaintiffs' petition for leave to appeal (155 Ill. 2d R. 315(a)), and we later allowed the Illinois Trial Lawyers' Association and the Illinois Association of Defense Trial Counsel to submit briefs as amici curiae (155 Ill. 2d R. 345(a)).

It will be helpful at the outset to clarify the various causes of action that have previously been asserted by parents and children for birth-related torts. An action for "wrongful pregnancy" or, as it has also been termed, "wrongful conception"-the action involved here-may be brought by parents following a negligently performed sterilization procedure. In an action for wrongful pregnancy, the parents seek to recover compensation for the expenses of the pregnancy they sought to avoid. Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 256, 111 Ill. Dec. 302, 512 N.E.2d 691 (1987). This court noted in Cockrum v. Baumgartner, 95 Ill. 2d 193, 196, 69 Ill. Dec. 168, 447 N.E.2d 385 (1983), that parents bringing such an action are generally permitted to recover damages for the cost of the unsuccessful operation, pain and suffering, any medical complications caused by the pregnancy, the costs of the child's delivery, lost wages, and loss of consortium. The recovery of those items is not at issue here. In contrast to those damages, however, Cockrum held that parents may not be awarded the expenses of raising a normal, healthy child born following the negligently performed procedure.

An action for "wrongful birth," a distinct cause of action, refers to a suit brought by parents who allege that they would not have conceived a child or carried one to term if it had not been for the defendant's negligence in "prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child." Siemieniec, 117 Ill. 2d at 235. In Siemieniec, parents who alleged that they received incorrect information regarding the likelihood that a child conceived by them would have hemophilia were allowed to recover "the extraordinary expenses-medical, hospital, institutional, educational and otherwise-which are necessary to properly manage and treat the congenital or genetic disorder." Siemieniec, 117 Ill. 2d at 260.

Finally, "wrongful life" is the term used to describe an action asserted by a parent or guardian on behalf of a minor in which the child seeks compensation for the failure to give his or her parents proper advice regarding the child's congenital condition. Siemieniec, 117 Ill. 2d at 236. In Goldberg v. Ruskin, 113 Ill. 2d 482, 486, 101 Ill. Dec. 818, 499 N.E.2d 406 (1986), this court refused to recognize an action for wrongful life, noting the nearly universal rejection by courts of a child's recovery of general damages under a wrongful-life theory, a result founded "on the value of life and the inherent difficulty of ascertaining a cognizable injury for which damages may be meaningfully awarded." Siemieniec later reaffirmed Goldberg by denying the child's separate wrongful-life claim in that case. Siemieniec, 117 Ill. 2d at 238-53.

The present appeal involves only an action for wrongful pregnancy, brought by the parents of a child born after an unsuccessful sterilization procedure, and the dispositive question in this case is whether the plaintiffs may recover damages for the extraordinary expenses that they allege they will incur in raising a child who is said to have a congenital defect. The plaintiffs believe that Cockrum, properly construed, bars only the recovery of the expenses of rearing a child who is healthy and normal, and the plaintiffs contend that Cockrum is not controlling here because they seek recovery of the extraordinary expenses of raising a child who is alleged to be other than healthy and normal. The plaintiffs further note that Siemieniec allowed parents to recover, in a wrongful-birth action, extraordinary expenses of a child who suffered from a congenital malady, and the plaintiffs contend that the same type of recovery ...


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