In a win for victims of medical malpractice involving “wrongful birth,” an Illinois Appellate Court recently extended the damages available in such actions. Illinois medical malpractice lawyers handling wrongful birth cases must take note of this decision.
This author has previously written about the need to extend damages for wrongful birth causes of action in Illinois. As discussed in the seminal Illinois Supreme Court in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (Ill. 1987), “wrongful birth” refers to claims 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 the prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child. As a “proximate result” of the negligently performed 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 Supreme Court held that the damages available in wrongful birth actions include “extraordinary expenses – medical, hospital, institutional, educational and otherwise – which are necessary to properly manage and treat the congenital or genetic disorder.” Id. at 260.
However, more recently in Clark v. Children’s Memorial Hospital, 2009 WL 987413 (Ill. App. 1 Dist. April 9, 2009), the Illinois Appellate Court for the First District extended the damages available to victims of wrongful birth.
First, the court held that the parents of a severely disabled child can recover damages for his care after he reaches the age of majority, an issue left unresolved in Siemieniec. According to the court, such damages “rightfully compensate the parents for the costs they will incur for caring for their disabled child.”
Second, the court allowed the parents to pursue their claim for “negligent infliction of emotional distress”, which the court found satisfied the “zone-of-physical-danger rule” articulated in Rickey v. Chicago Transit Authority, 98 Ill. 2d 546 (Ill. 1983). Rather than finding the parents to be innocent “bystanders”, the court held the parents adequately pleaded they were “within the zone-of-physical-danger caused by defendants’ alleged negligence.”
