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Amy Clark et al v. the Children's

May 6, 2011


JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

Justice Freeman concurred in part and dissented in part, with opinion.


Plaintiffs, Amy and Jeff Clark, individually and on behalf of their minor son, Timothy, filed a 16-count complaint against several defendants. Their claims included wrongful birth and negligent infliction of emotional distress. The circuit court of Cook County ruled that the damages available in a wrongful-birth action do not include the extraordinary costs of caring for a disabled child after he reaches the age of majority. The circuit court also dismissed plaintiffs' claim for negligent infliction of emotional distress. Having already reached a settlement with other defendants, plaintiffs voluntarily dismissed the remaining counts against the remaining defendants, Children's Memorial Hospital and Dr. Barbara Burton, and the circuit court dismissed the case with prejudice.

The appellate court held that plaintiff parents in a wrongful-birth case may recover damages for the cost of caring for their dependent,*fn1 disabled, adult child and that the plaintiffs in this case had adequately pleaded a cause of action for negligent infliction of emotional distress. 391 Ill. App. 3d 321. Defendants filed a petition for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Oct. 15, 2007)), which we allowed. We also allowed Fertility Centers of Illinois, S.C., the Illinois Hospital Association, and the Illinois Trial Lawyers Association to file briefs as amici curiae pursuant to Supreme Court Rule 345 (Ill. S. Ct. R. 345 (eff. Dec. 6, 2005)).

For the reasons that follow, we affirm the judgment of the appellate court in part and reverse in part.


Plaintiffs Amy and Jeff Clark filed suit against Paul Wong, M.D., Rush University Medical Center (Rush), Baylor University Medical Center (Baylor), and Quest Diagnostics Clinical Laboratories (Quest), alleging various theories of liability in connection with the birth of their son, Timothy, who has Angelman Syndrome.*fn2 They later added Children's Memorial Hospital (Children's Memorial) and Barbara Burton, M.D., as defendants. Their amended complaint alleged that Burton negligently failed to inform plaintiffs of test results revealing that their first son, Brandon, suffered from Angelman Syndrome due to a UBE3A genetic mutation, and that they would not have conceived Timothy had she provided them with accurate information regarding the risk of giving birth to another child with the same condition.

According to the complaint, Brandon, who was born in 1997, began exhibiting developmental delays when he was about 15 months old. In 2000, plaintiffs sought genetic testing and counseling from Dr. Wong, a geneticist at Rush, to determine whether Brandon suffered from Angelman Syndrome, a condition that may be, but is not always, cause by an inherited gene mutation. Dr. Wong ordered a genetic sequencing test, which was performed by Baylor on a blood sample drawn by Quest. Dr. Wong later reported to the plaintiffs that Brandon's condition was "clinical" in nature and was not caused by a genetic abnormality.

Nevertheless, before conceiving another child, Amy sought a second opinion from Dr. Burton, a geneticist at Children's Memorial, to determine if Brandon suffered from Angelman Syndrome due to the UBE3A gene mutation. In 2001, without first obtaining the results of the gene sequencing test performed at Baylor or ordering another test, Dr. Burton informed Amy that all known genetic mechanisms that might have caused Angelman Syndrome in Brandon had been ruled out.

The information provided to the plaintiffs by Drs. Wong and Burton, however, was incorrect. Baylor's genetic sequencing analysis of Brandon's DNA indicated that he suffered from Angelman Syndrome due to a truncating mutation of the UBE3A gene. If further testing had been ordered based on this result, it would have revealed whether the mutation was de novo or hereditary, that is, whether it was a random occurrence in Brandon's genes or an inherited mutation.

Lacking accurate and complete information and relying on Dr. Burton's conclusion that all known mechanisms for identifying the UBE3A gene mutation linked to Angelman Syndrome ruled out the mutation as the cause of Brandon's condition, the Clarks conceived another child.

In March 2002, Amy gave birth to Timothy. In June 2002, she observed that Timothy exhibited jerky and unpredictable motor movements, among other symptoms similar to Brandon's.

On September 30, 2002, after repeated unsuccessful attempts to obtain the results of the UBE3A sequencing analysis from Dr. Wong, Amy contacted Baylor to request a copy of the report. The Baylor staff member to whom she spoke explained that because testing was performed under contract with the requesting physician, test results were released only to the physician, not to the patient. However, the staff member also mentioned that the results of Brandon's genetic sequencing test were "abnormal."

The report, which was eventually obtained through the efforts of counsel, concluded that Brandon's UBE3A gene was truncated and that further testing was needed to determine if Amy was a carrier of the abnormal gene. Dr. Burton acknowledged that later testing has revealed that Timothy's mutation was inherited from Amy and that had she obtained the test result from Baylor, she would have counseled plaintiffs differently.

Timothy, like his brother Brandon, was diagnosed with Angelman Syndrome.

In September 2003, plaintiffs filed their initial wrongful-birth complaint, which was amended several times. The first amended complaint, filed on September 7, 2004, added Dr. Burton and Children's Memorial as defendants. Plaintiffs later voluntarily dismissed Baylor and reached settlements with Wong, Rush, and Quest.

In 2006, Dr. Burton and Children's Memorial--by then the only remaining defendants--moved for summary judgment on the ground that plaintiffs failed to bring suit against them within the two-year limitations period set forth in section 13--212 of the Code of Civil Procedure (735 ILCS 5/13--212 (West 2006)). The circuit court denied the motion, reasoning, in part, that there was "at least a question of fact" as to when the statute was triggered and the limitations period began to run.

Plaintiffs subsequently filed their third amended complaint in 2008, seeking damages for wrongful birth consisting of the extraordinary costs of caring for Timothy during his minority, the extraordinary costs of caring for him after he reaches the age of majority, and his lost wages. In support of their claim for the extraordinary costs of caring for Timothy during his majority, plaintiffs alleged that Timothy "is and always will be mentally disabled," that Angelman Syndrome is a "permanent genetic disorder with no chance of ever being cured," and that Timothy has "no chance of leading an independent life as an adult or being emancipated." Plaintiffs further alleged that, as a disabled adult, Timothy "will not be able to care for himself in any way and will require substantial sums of money to sustain his life." As a result, plaintiffs "will continue to care for Timothy *** into his majority and will be legally liable for some or all of these costs because Timothy will never be emancipated."

Plaintiffs also sought damages for the separate tort of negligent infliction of emotional distress.

The circuit court ruled that plaintiffs could recover damages for the extraordinary costs of caring for Timothy during his minority, but could not recover damages for the extraordinary costs of caring for him after he reaches the age of majority. Pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2006)), the court dismissed those portions of plaintiffs' third amended complaint alleging negligent infliction of emotional distress and those counts seeking damages for Timothy's lost wages and the extraordinary medical expenses of caring for him during his majority. Because the only remaining claim, that seeking damages for the extraordinary expenses of caring for Timothy during his minority, would have been completely offset by the previous settlement with other defendants, plaintiffs voluntarily dismissed this claim. The circuit court dismissed the case with prejudice, stating there was no just reason to delay enforcement or appeal.

The appellate court affirmed in part and reversed in part, and remanded for further proceedings. 391 Ill. App. 3d 321. The court reversed the circuit court's dismissal of the counts seeking postmajority damages and the counts alleging negligent infliction of emotional distress. However, the appellate court affirmed the dismissal of the counts seeking damages for lost wages. According to the court, any recovery for lost wages would be duplicative of the damages for the extraordinary costs of caring for Timothy during his majority. The appellate court also declined to consider defendants' alternative argument that the dismissal of plaintiffs' complaint should be affirmed on statute of limitations grounds.


A motion to dismiss pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2006)) challenges the legal sufficiency of the complaint by alleging defects on the face of the complaint. Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004). In ruling on a section 2--615 motion, we accept as true all well-pleaded facts in the complaint and all reasonable inferences therefrom. Vitro, 209 Ill. 2d at 81. The critical inquiry is whether the allegations of the complaint, when construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003); Vitro, 209 Ill. 2d at 81. We review an order granting a section 2--615 motion to dismiss de novo. Wakulich, 203 Ill. 2d at 228; Vitro, 209 Ill. 2d at 81.

In Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 258 (1987), this court recognized that the parents of a child born with a genetic or congenital disorder have a cause of action in tort if, but for the defendant's negligence in testing or counseling as to the risk of giving birth to a child with such a condition, they would have avoided conception or terminated the pregnancy. In Siemienic, the remedies sought by the plaintiff parents of a child born with hemophilia, a bleeding disorder, included the extraordinary medical and other expenses involved in caring for the child during his minority and damages for their emotional anguish and suffering. Id. at 253.

This court allowed recovery of damages for "the extraordinary expenses--medical, hospital, institutional, educational and otherwise--which are necessary to properly manage and treat the congenital or genetic disorder," noting that the plaintiff parents were seeking to recover only such expenses as would be incurred prior to the child's reaching the age of majority. Id. at 260. This court also held that the parents could not recover damages for their emotional distress as an "element in the calculation of damages" for wrongful birth (id. at 261), because they could not state a claim for negligent infliction of emotional distress under the "zone-of-danger rule" (id. at 262-63).

Two issues raised by the defendants in this appeal involve the remedies available to successful plaintiffs in a wrongful-birth action. The first question--whether the parents may recover damages for the extraordinary expenses of caring for the disabled child after he reaches the age of majority--was not answered in Siemieniec because the parents in that case did not allege their child suffered from a condition that would cause him to be financially dependent as an adult. In the present case, the parents have alleged that their child's condition will make it impossible for him to be self-supporting as an adult. The second question--whether the parents may recover damages for emotional distress caused by the defendants' negligence--was answered in Siemieniec in the negative. Defendants also ask this court to review the circuit court's ruling on their motion for summary judgment based on the statute of limitations, which the appellate court did not consider.

A. Damages for Costs of Care Beyond Age of Majority

The circuit court ruled that while the plaintiff parents in a wrongful-birth action may recover damages for the extraordinary costs of caring for their child during his minority, they may not recover damages for such costs after he reaches the age of majority. The appellate court reversed, holding that postmajority expenses are recoverable damages that compensate parents for the "costs they will incur for caring for their disabled child." 391 Ill. App. 3d at 330. In reaching this conclusion, the appellate court noted that in a dissolution proceeding, "support obligations for an unemancipated, disabled child over the age of majority" are determined on a case-by-case basis and thus found no basis for "automatically forclos[ing] damages in a wrongful birth case for the extraordinary costs of caring [for] and supporting an unemancipated, disabled child beyond the age of majority." Id. at 329. The concurring justice explained that public policy favors imposing these costs on the tortfeasor, rather than on the parents or the taxpayers, and suggested that if this assumption regarding public policy is incorrect, the error will be corrected through the legal or the political process. Id. at 333 (Gallagher, J., specially concurring).

Before this court, defendants argue that because parents have no legal obligation to support a child beyond the age of majority, parents in a wrongful-birth suit may not recover damages for postmajority expenses.

Plaintiffs assert four separate bases for allowing such damages.

First, they argue that they may be held liable for Timothy's postmajority expenses under Illinois common law and, as a result, they may recover damages from the tortfeasor whose negligence resulted in their liability. Second, they argue that Illinois statutory law supports the same result. Third, they rely on decisions from other jurisdictions allowing plaintiff parents in wrongful-birth cases to recover postmajority expenses as an element of damages and urge this court to follow the reasoning of these cases. Fourth, they assert that the public policy of the State of Illinois supports holding the tortfeasor responsible for these foreseeable costs.

We begin our analysis with the fundamental premise of tort law--that of just compensation for any loss or injury proximately caused by the tortfeasor. See Siemieniec, 117 Ill. 2d at 259. Damages are recoverable to the extent necessary to place the injured party in the position he would have occupied if the wrong had not been committed. Genslinger v. New Illinois Athletic Club of Chicago, 339 Ill. 426, 443 (1930). See also Wilson v. The Hoffman Group, Inc., 131 Ill. 2d 308, 321 (1989) (stating that it is well settled under our precedent that "[t]he purpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish defendants or bestow a windfall upon plaintiffs"); Best v. Taylor Machine Works, 179 Ill. 2d 367, 406 (1997) ("[t]here is universal agreement that the compensatory goal of tort law requires that an injured plaintiff be made whole"); Restatement (Second) of Torts §903, cmt. a, at 453-54 (1979) ( "compensatory damages are designed to place [a plaintiff] in a position substantially equivalent in a pecuniary way to that which he would have occupied had no tort been committed").

Thus, the plaintiffs' ability to recover damages for the extraordinary expenses of caring for their son after he reaches the age of majority depends on whether parents have an obligation under Illinois law to support a disabled, dependent adult child. If they have no such obligation, these expenses are not legal harms suffered by the parents, despite their commitment to care for their son throughout his life and their willingness to assume these costs voluntarily.

The appellate court recognized this requirement, noting that for parents to recover from a tortfeasor for their child's medical expenses, "they must be legally liable for the charges, and the basis for such liability must exist prior to the creation of the charges and not arise due to a voluntary assumption of financial responsibility after the fact." 391 Ill. App. 3d at 328 (citing Tully v. Cuddy, 139 Ill. App. 3d 697, 699 (1985)). The question for this court, therefore, is whether Illinois law imposes such an obligation.

1. Common Law

The generally accepted common law rule is that parents have no obligation to support their adult children. People v. Hill, 163 Ill. 186, 189 (1896) ("The duty of parents to provide for the maintenance of their children is a principle of natural law; but the common law does not, like the civil law, fully enforce this mere moral obligation, but simply goes to the extent of requiring parents to support their offspring until they attain the age of maturity.").

Plaintiffs assert that the common law of Illinois recognizes an exception to this general rule for the support of an adult child who is physically or mentally incapacitated and incapable of supporting himself. We find, however, that the history of our common law reveals that the generally accepted common law rule is the law of Illinois, with specific, narrow exceptions that have since been codified by statute.

According to plaintiffs, the earliest reported Illinois decision discussing the issue of postmajority support is Plaster v. Plaster,47 Ill. 290 (1868). Twelve years after the wife obtained a divorce on the grounds of desertion, she sought support for the son, who had been three years old at the time of the divorce and for whom the father had not, in the intervening years, provided any financial support. This court said that "[a]fter the boy became able to earn a support, in whole or in part, the father was not bound to maintain him in idleness, but only to contribute and pay for such portion as the child could not earn by reasonable effort." Id. at 293. Because the record did not reveal the boy's situation, "it would be proper to ascertain what the boy has been capable of earning for his own support, and if that would have been insufficient, then the remainder which was necessary should be ascertained and allowed." Id. Further, "[i]f the boy has attained an age that he is capable of supporting himself," the court would not require the father to contribute to his support. Id. at 294. If, however, "from physical debility and impaired health, the boy is unable to earn a livelihood, and must depend upon others for support, who should more naturally contribute to that end than his father?" Id.

The issue in Plaster was not whether a parent is obliged to support a disabled adult child. The issue was whether the mother, who had originally been awarded custody of the son, but no support, could return to court years later seeking a support order. This court ruled that the child, then in his teens, was entitled to support from his father to the extent that he was unable to support himself. The court noted that if he were incapable of supporting himself, his father should do so. The decision made no mention of what obligation either parent might have had once the child reached the age of majority. Plaster, therefore, offers little support for plaintiffs' position.

Plaintiffs also rely on Freestate v. Freestate, 244 Ill. App. 166 (1927), in which the appellate court was asked to determine whether a divorced father could be ordered to pay support for a 23-year-old invalid daughter. Although this appellate court decision has no binding authority in the trial court because it was filed before 1935 (see Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 95 (1996)), it is of historical interest. The couple had divorced when the daughter was 13 and custody was given to the mother. No provision for child support was made at that time. Freestate, 244 Ill. App. at 167. The mother returned to court 10 years later, seeking support for the now-adult daughter. The appellate court ruled that the trial court had jurisdiction in the matter and had the authority to enter a support order despite the daughter's age. The court cited cases from the court of appeals of Kentucky (Crain v. Mallone, 113 S.W. 67 (Ky. 1908)) and the Supreme Court of Vermont (Rowell v. Town of Vershire, 19 A. 990 (Vt. 1890)) as a basis for concluding that the "natural, as well as the legal, obligation" is the same whether the child is an infant or an adult child who is "helpless and incapable of making his support." Freestate, 244 Ill. App. at 169-70.

Freestate was cited in a more recent case, Strom v. Strom, 13 Ill. App. 2d 354 (1957). The parents divorced when their daughter was three years old. She was subsequently stricken with polio, although the opinion does not state that she was disabled as a result. Ten years after the divorce, at which time she would have been 15, the mother sought an increase in child support and reimbursement of various expenditures. Id. at 358. She also asked that the father be ordered to pay the reasonable expenses of a college education for the girl. The trial court denied this relief on the basis that it lacked jurisdiction. The appellate court examined cases from Illinois and other states and found nothing in the Divorce Act to specifically preclude an order providing for a child's education beyond the age of majority. Id. at 362. In the end, the court concluded that "[w]here such care and education are necessary to equip the child for adult life and where the financial circumstances of the father are entirely adequate to meet such requirements, equity can and should continue its jurisdiction." Id. at 364. The court observed that "[o]ne of the fundamental rules is that a court of equity having taken jurisdiction will retain it for all purposes and do complete justice between the parties." Id. at 367.

The Strom court rejected the reasoning of Rife v. Rife, 272 Ill. App. 404 (1933), that "by necessary implication" the Divorce Act did not permit an award of support beyond the child's minority. Strom, at 363 (citing Rife, 272 Ill. App. at 410). In Rife, the father appealed from an order that he continue to pay support for a 20-year-old daughter who had graduated from high school and from a business school but who, because she was "frail" and suffered from "depression," could not secure employment. Rife, 272 Ill. App. at 406. Referring to the Divorce Act, the appellate court stated that the "rule is well established and generally recognized that the only authority a court of chancery has to provide for the care and support of children is the power granted under the terms of this statute, and that its power is limited by implication to the custody, support and care of minor children." Id. at 408. Further, the rule "is also well recognized that in the absence of a proceeding for divorce, a court of equity has no jurisdiction either as to the custody or support of children." Id. Thus, the court reversed that portion of the judgment awarding support for the adult daughter. Id. at 413.

In Freestate and in Strom, the appellate court allowed the trial court to exercise its equitable power to order a non-custodial father to contribute to the support of his adult child either because he was disabled or because she desired a college education. These cases do not stand for the general proposition that all parents, married or divorced, have an obligation to support an adult disabled child or to pay for a child's college education. They suggest, at most, that once parents submit to the jurisdiction of the court by obtaining a divorce, the court has discretion to order postmajority support in limited circumstances. Even this narrow principle, however, was not universally accepted, as demonstrated by the decision in Rife. In any event, subsequent legislative enactments have rendered these cases of little value in answering the question at bar.

We conclude that the common law as developed in cases through the late 1950s was in conflict regarding the obligation of parents to support a disabled adult child and that cases in which such support was awarded were limited to those in which a custodial parent sought support from a non-custodial parent following a divorce. In the middle of the last century, the issue became more and more one of statutory law.

2. Statutory Law

A statutory exception to the generally accepted common law rule was made by the Paupers Act of 1874, which provided that parents had the legal duty to support a child who was a "poor person *** unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause." Ill. Rev. Stat. 1874, ch. 107, §1.

This statute was repealed in 1949, coincident with enactment of the Illinois Public Aid Code, which initially imposed a duty of support of adult children "in need and unable to earn a livelihood in consequence of any unavoidable cause." 1949 Ill. Laws 418, §4--2. See Ill. Rev. Stat. 1955, ch. 23, par. 436--12; Ill. Rev. Stat. 1965, ch. 23, par. 112 (providing that "parents are severally liable for the support of any child *** 18 years of age or over whenever such child is unable to maintain himself and is, or is likely to become, a public charge").

This parental duty was substantially narrowed in 1967, when the Public Aid Code was amended to provide that parents were obligated to support an adult child over the age of 21 only if that child was blind or permanently disabled and two conditions were met. The child must have been "continuously dependent, in whole or in part, upon one or both of his parents" and he must have "continuously resided in the home of a parent" except for certain exempted temporary absences. 1967 Ill. Laws 2328, §1.

Subsequent amendment of the Public Aid Code in 1969 eliminated any duty of parental support of nonminor children, even those who are disabled. Ill. Rev. Stat. 1969, ch. 23, par. 10--2.

The Public Aid Code presently provides that "parents are severally liable for the support of any child under age 18, and for any child aged 18 who is attending high school, until that child graduates from high school, or attains the age of 19, whichever is earlier." 305 ILCS 5/10--2 (West 2006).

Thus, although the legislature for a time imposed a parental support obligation to support dependent adult children, it abandoned that policy decades ago.

Other statutes are consistent with the generally accepted common law rule of no parental duty of support. Under the Mental Health and Developmental Disabilities Code, "responsible relatives" of a recipient of services from the Department of Mental Health "shall be liable for medical costs," excluding "service charges incurred by a child after the child reaches the age of majority." 405 ILCS 5/5--105, 5--115 (West 2006).

The Family Expense Act is a codification and expansion of common law doctrine of necessaries, under which a wife or minor child could obtain necessary goods or services on credit and the husband or father was liable, based on his duty to support his family. See, e.g., Hunt v. Thompson, 4 Ill. 179, 180 (1840) ("[A] parent is under an obligation to provide for the maintenance of his infant children, is a principle of natural law; and it is upon this natural obligation alone that the duty of a parent to provide his infant children with the necessaries of life rests."); Phillips v. Dodds, 371 Ill. App. 3d 549, 551-52 (2007) (explaining that the Family Expense Act defines "family expenses" more broadly than mere "necessaries"). Under this statute, "[t]he expenses of the family *** shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately." 750 ILCS 65/15(a)(1) (West 2006).

Judicial decisions interpreting this statute have consistently interpreted it as imposing an obligation on parents only until their child attains his majority. See, e.g., Proctor Hospital v. Taylor, 279 Ill. App. 3d 624, 628 (1996) ("[O]nce a child reaches the age of majority, the parents' responsibility to support the child ceases, and the parents may no longer be held liable for these expenses under the Expense Statute."); Pfeil v. Weerde, 152 Ill. App. 3d 759, 761 (1987) (holding that mother may not recover damages for her voluntary payment of medical expenses of 19-year-old daughter who lived at home; stating that "it is manifest that a parent is not liable under the [family expense] statute for expenses an adult child incurs"). See also Sapp v. Johnston, 15 Ill. App. 3d 119, 123-24 (1973) (father not liable for medical expenses of adult son under Public Aid Code, family expense statute, or the common law).

We note that we have found no reported cases construing the Family Expense Act that involve an adult child who was incapable of self-support due to a disability. However, nothing in the language of the statute suggests that it should be interpreted differently if the adult child were not capable of self-support. Excluding disabled adult children from the scope of the ...

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