Appeal from the Circuit Court of Cook County. Honorable Richard B. Berland Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
Plaintiff, Martia Thornhill, appeals from a jury verdict in favor of defendants, Midwest Physician Center of Orland Park and Dr. Mari Ann Herbert, in a wrongful birth action. Plaintiff sought recovery for the extraordinary expenses involved with raising her Down's Syndrome daughter, alleging that defendants negligently failed to inform her of her unborn daughter's genetic defect until it was legally too late for her to obtain an abortion. On appeal, plaintiff contends that the circuit court erred in: (1) denying her motion for a directed verdict on liability; (2) improperly restricting voir dire; (3) making several evidentiary rulings; (4) instructing the jury on the issue of burden of proof; (5) allowing defense counsel to argue facts not in evidence during closing argument; and (6) denying plaintiff's motion for a judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, a new trial.
On December 21, 1996, plaintiff gave birth to a daughter, Aubria, who suffers from Down's Syndrome. Dr. Herbert provided plaintiff's prenatal care. On July 22, 1996, per Dr. Herbert's order, plaintiff was administered an alphafetoprotein (AFP) test, which is a blood test that screens for genetic defects such as Down's Syndrome. Dr. Herbert testified that she initially reviewed plaintiff's AFP test results on July 24, 1996, and told plaintiff the results were fine. The report of plaintiff's AFP test stated, however, under the heading "Down's Syndrome interpretation," "this risk factor indicates an increased likelihood for Down's [S]yndrome pregnancy." Dr. Herbert re-checked the test results in late October 1996 and discovered her mistake. On October 30, 1996, Dr. Herbert notified plaintiff of the correct AFP results and set up a consultation for plaintiff with Dr. William Donald, a perinatologist. Dr. Herbert admitted that she misread the report and that, when she gave plaintiff the correct AFP test results, it was too late for plaintiff electively to terminate the pregnancy. Dr. Herbert further admitted that she deviated from the standard of care by not informing plaintiff of the correct AFP test results within the time period during which plaintiff electively could have terminated her pregnancy.
During adverse examination at trial, Dr. Herbert agreed that prior to October 30, 1996, she never spoke with plaintiff regarding termination of the pregnancy. Dr. Herbert further testified regarding a conversation she had with plaintiff after plaintiff's consultation with Dr. Donald. *fn1
During her case-in-chief, Dr. Herbert testified regarding the preceding conversation, stating that "my very last statement to [plaintiff] was it is my understanding that you would not have altered this pregnancy regardless, and she agreed." Dr. Herbert was then asked "did [plaintiff] at any time during that office visit tell you that if she had known of an abnormal triple screen and a higher incidence of Down's [Syndrome] that she would have terminated the pregnancy," to which Dr. Herbert responded "no."
Dr. Robert E. Eilers, plaintiff's damages expert, testified regarding Aubria's needs and the estimated costs of meeting those needs through age 18. Prior to trial, the circuit court, as a discovery sanction, barred Dr. Eilers from testifying as to his most recent examination of Aubria.
Joseph Thornhill, plaintiff's husband and Aubria's father, testified that prior to undergoing the AFP test, he and plaintiff had decided that if the test revealed genetic abnormalities in the fetus it would be aborted.
Plaintiff testified that if she had been informed of the correct AFP test results in July 1996, she would have terminated the pregnancy. She denied ever telling Dr. Herbert that she would not have terminated the pregnancy. Plaintiff stated that she works full time as a registered nurse.
Plaintiff was recalled as a rebuttal witness and stated that Dr. Herbert never asked her what she would have done about continuing the pregnancy if she had known the abnormal results earlier. She denied telling Dr. Herbert that she would not have terminated the pregnancy even if she had known the results earlier. At the close of all the evidence, plaintiff moved unsuccessfully for a directed verdict on the issue of liability. The jury returned a verdict in favor of defendants. Plaintiff's post-trial motion was denied.
Plaintiff first contends that the circuit court erred in failing to grant a directed verdict in her favor on the issue of liability.
Plaintiff argues that she sustained her burden of proof on the issue of proximate cause, as a matter of law, because she established that she had been deprived of the opportunity to have an abortion. It was undisputed that Dr. Herbert deviated from the standard of care by failing to read the test report correctly. It was further undisputed that when plaintiff was given the correct test results, it was too late for her legally to terminate her pregnancy in Illinois. Plaintiff insists she was not required to prove that she would have terminated the pregnancy if timely informed that a genetic defect was present. It should be noted that despite this argument, plaintiff alleged in her complaint that "[b]ut for the defendants' negligence the plaintiff, MARTIA THORNHILL, would have terminated the congenitally or genetically defective fetus."
In Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 512 N.E.2d 691 (1987) (Siemieniec), the supreme court recognized a cause of action for wrongful birth, which it defined as: "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." Siemieniec, 117 Ill. 2d at 235.
The Siemieniec court was careful to emphasize the procedural posture of the case, noting that the question was not whether plaintiffs ultimately should prevail in the litigation, but whether the complaint stated a legally cognizable cause of action. The court accepted as true all well-pleaded facts, including the allegation "that if [plaintiff] 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." Siemieniec, 117 Ill. 2d at 234-35. Further, in recognizing the cause of action, the court noted that "courts which have considered wrongful birth claims have been almost unanimous in their recognition of a cause of action against a physician or other healthcare provider where it is alleged that but for the defendants' negligence the parents would have terminated the congenitally or genetically defective fetus by abortion." Siemieniec, 117 Ill. 2d at 256. *fn2
In McDaniel v. Ong, 311 Ill. App. 3d 203, 724 N.E.2d 38 (1999) (McDaniel), the guardians of a nursing home patient, who suffered from severe developmental disabilities and had given birth to a child after becoming pregnant while in the nursing home, brought a medical malpractice action against the patient's doctor based on her failure timely to detect the pregnancy. The plaintiffs claimed that the failure to diagnose the pregnancy sooner precluded the patient from obtaining an abortion. The appellate court noted that the plaintiffs were required to show proximate cause. The plaintiffs failed to demonstrate that if the pregnancy had been diagnosed earlier the patient would have obtained an abortion. After considering the doctrine of loss of chance, the court found that "[t]he fact that [the plaintiffs] have not asserted that different action would have been undertaken to end the pregnancy if the pregnancy had been detected sooner [i.e. an abortion] leaves a gap in the proof as to proximate cause." McDaniel, 311 Ill. App. 3d at 211. The appellate court affirmed the grant of summary judgment in favor of the doctor.
Plaintiff seeks to distinguish McDaniel on its facts, pointing out that it is not a wrongful birth case. Plaintiff stressed during oral argument, however, that the present case was a lost chance case. In McDaniel, the appellate court specifically considered the lost chance doctrine and proximate cause in the context of an abortion case. McDaniel, 311 Ill. App. 3d at 209-12. McDaniel's discussion of proximate cause is instructive for the present case.
Pursuant to Siemieniec and McDaniel, in order to establish proximate cause plaintiff was required to plead and prove that, had she known of the correct AFP test results in a timely fashion, she would have terminated the pregnancy.
Plaintiff next argues that the circuit court erred in concluding that a question of fact existed because the evidence supported only one conclusion - that she would have terminated the pregnancy had she timely learned the AFP test results.
A directed verdict is proper only when the evidence, viewed in the light most favorable to the non-movant, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967) (Pedrick). The denial of a motion for directed verdict is reviewed de novo. Schiff v. Friberg, 331 Ill. App. 3d 643, 771 N.E.2d 517 (2002) (Schiff).
Both plaintiff and her husband testified that prior to undergoing the AFP test they had discussed and agreed that if the test revealed a genetic abnormality they would abort the baby. Plaintiff denied having any conversation with Dr. Herbert in which plaintiff said she would not have terminated the pregnancy. Dr. Herbert testified that during her conversation with plaintiff in November 1996, plaintiff agreed that she would not have altered the pregnancy regardless of when she learned the correct AFP test results. Plaintiff argues that the inconsistencies in Dr. Herbert's testimony regarding her conversation with plaintiff render defendants evidence "a mere scintilla" and not sufficient to defeat plaintiff's motion for a directed verdict. See Williams v. Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039, 654 N.E.2d 613 (1995).
The inconsistencies in Dr. Herbert's testimony identified by plaintiff did not reduce her evidence to a mere "spark or trace" (Black's Law Dictionary 1347 (7th ed. 1999)), but required a credibility evaluation by the factfinder, here the jury. The jury was presented with the conflicting testimony and made its credibility determinations. A directed verdict is improper where, as here, "there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the ...