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Williams v. Rosner

Court of Appeals of Illinois, First District, Third Division

February 26, 2014

CYNTHIA WILLIAMS and KENNETH WILLIAMS, Individually, and as Parents and Next Friends of Kennadi Williams, a Minor, Plaintiffs-Appellees,
v.
BYRON ROSNER, M.D., and REPRODUCTIVE HEALTH ASSOCIATES, S.C., a For-Profit Corporation, Defendants-Appellants

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 10 L 12558. The Honorable John P. Kirby, Judge Presiding.

SYLLABUS

Pursuant to a question certified nunc pro tunc for interlocutory review pursuant to Supreme Court Rule 308, the appellate court responded that plaintiffs in a wrongful pregnancy action may recover for the extraordinary expenses involved in raising a child afflicted with sickle cell disease when defendant physician knew plaintiff and her husband were carriers of the sickle cell trait, that plaintiffs had previously conceived a child with sickle cell disease and that plaintiffs desired sterilization to avoid giving birth to another child afflicted with sickle cell disease.

FOR APPELLANTS: Richard H. Donohue, Karen Kies DeGrand, Todd J. Stalmack, of counsel, Donohue, Brown, Mathewson & Smyth, Chicago, IL.

FOR APPELLEES: James D. Montgomery, Beverly P. Spearman, of counsel, Cochran, Cherry, Givens, Smith & Montgomery, LLC, Chicago, IL; Patrick E. Dwyer III, Dwyer, McCarthy & Associates, Chicago, IL.

For Amicus Curiae Brief (in support of plaintiffs-appellees): Patrick E. Dwyer III, Dwyer, McCarthy & Associates, Chicago, IL.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.

OPINION

PUCINSKI, JUSTICE

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[¶1] Plaintiffs Cynthia Williams and Kenneth Williams, individually, and as parents and next friends of Kennadi Williams, a minor, filed a complaint advancing claims of negligence and wrongful pregnancy against defendants Byron Rosner, M.D., and Reproductive Health Associates (Reproductive Health). Among the damages that plaintiffs sought to recover were the extraordinary expenses that they would incur in raising their daughter, who was born with sickle cell disease following an unsuccessful sterilization procedure. Defendants filed a motion to dismiss the wrongful pregnancy action filed by plaintiffs, arguing their claim failed as a matter of law because there was no authority permitting plaintiff parents who file wrongful pregnancy actions in Illinois to recover the extraordinary expenses they would incur in raising a child who is born with a genetic abnormality. The circuit court denied defendants' motion to dismiss; however, it recognized that the case involved an issue of law as to which there were substantial grounds for differing opinions and certified a question for appellate review. For the reasons explained herein, we answer the certified question in the affirmative.

[¶2] I. BACKGROUND

[¶3] Cynthia and Kenneth Williams are both carriers of the sickle cell trait,[1] and their first child, a son, was born with sickle cell disease.[2] In January 2001, after the birth of the couple's son, Cynthia began receiving obstetrics and gynecology services from various physicians, including Doctor Rosner, who were employed by Reproductive Health, and practiced various birth control options prescribed by the doctors. On November 28, 2005, Cynthia elected to undergo a tubal ligation in an effort to achieve permanent sterility. The procedure was subsequently canceled, however, when complications arose with respect to the anesthesia.

[¶4] Thereafter, on December 8, 2008, Cynthia had another consultation with Doctor Rosner to further discuss birth control options. At the conclusion of the consultation, Cynthia elected to undergo a mini-laparotomy[3] and tubal ligation procedure, to be performed by Doctor Rosner.

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Cynthia underwent the procedure on December 30, 2008. Unbeknownst to her, Doctor Rosner left one of her fallopian tubes and one of her ovaries intact.[4]

[¶5] Subsequently, on June 24, 2009, Cynthia learned that she was pregnant. Cynthia gave birth to a daughter, Kennadi, on February 1, 2010, via cesarian section. At this time, Cynthia learned that her left fallopian tube and ovary had not been removed during the December 2008 procedure. Kennadi was subsequently diagnosed with sickle cell disease.

[¶6] Complaint

[¶7] Following Kennadi's birth and diagnosis, the Williamses filed a complaint against Doctor Rosner and Reproductive Health advancing claims of medical negligence and wrongful pregnancy. The complaint was amended twice. In the second amended complaint, the complaint at issue here, plaintiffs alleged that Cynthia had a consultation with Doctor Rosner, during which she communicated the following relevant information: that she and her husband were carriers of the sickle cell trait; that they had a son afflicted with sickle cell disease; and that they desired permanent sterility to avoid conceiving another child with sickle cell disease. Doctor Rosner scheduled a bilateral tubal ligation procedure following their discussion. Thereafter, plaintiffs made the following allegations with respect to their wrongful pregnancy claim:

" 36. In providing medical care to CYNTHIA WILLIAMS, Defendants BYRON ROSNER, M.D., and REPRODUCTIVE HEALTH ASSOCIATES, S.C., had a duty to possess and apply the knowledge and use the skill and care which a reasonably well-qualified physician would use in cases like that of CYNTHIA WILLIAMS.
37. Defendants, BYRON ROSNER, M.D., and REPRODUCTIVE HEALTH ASSOCIATES, S.C., breached that duty and were negligent in the care and treatment of Plaintiff CYNTHIA ...

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