Illinois Appellate Court Allows Recovery of Extraordinary Expenses in Wrongful Pregnancy Action
Plaintiffs may plead an action for "wrongful pregnancy" if a pregnancy occurs despite the performance of a surgical procedure for sterilization such as a tubal ligation. When a plaintiff establishes the defendant's liability under a wrongful pregnancy theory, monetary damages are typically limited to only general expenses. However, the Illinois First District Appellate Court recently held that a plaintiff may also recover extraordinary expenses in a wrongful pregnancy claim, which includes monetary damages for medical, institutional and educational expenses necessary to manage and treat the child's congenital or genetic disorder. As a result, it is now more likely that plaintiffs will seek such damages in a wrongful pregnancy action.
In Williams v. Rosner, 2014 IL App (1st) 120378, plaintiffs Cynthia Williams ("Cynthia") and Kenneth Williams were both carriers of the trait that causes sickle cell disease. The Williams' first child developed sickle cell disease shortly after birth, and thereafter Cynthia sought obstetrics and gynecology services from the defendant, Dr. Rosner at Reproductive Health Associates, S.C. ("Reproductive Health"). Cynthia discussed her concerns with Dr. Rosner, including her fear of birthing another child who would inevitably develop sickle cell disease. Accordingly, she elected to undergo a tubal ligation in an effort to achieve permanent sterility, but the procedure was canceled due to anesthesia complications. Shortly thereafter,Dr. Rosner recommended that Cynthia undergo a mini-laparotomy in addition to the originally agreed upon tubal ligation procedure. On December 30, 2008, Dr. Rosner performed the mini-laparotomy and tubal ligation on Cynthia. However, Dr. Rosner only removed one of her fallopian tubes and one of her ovaries, and left the remaining fallopian tube and ovary intact. Less than a year later, Cynthia became pregnant with her second child. It was at this time that Cynthia learned that her left fallopian tube and ovary had not been removed during the December 2008 procedure. On February 1, 2010, she gave birth to a daughter, Kennadi, who was subsequently diagnosed with sickle cell disease.
The Williams filed a complaint against Dr. Rosner and Reproductive Health for medical negligence and wrongful pregnancy and alleged that the defendants proximately caused Cynthia to have undesired fertility which resulted in the birth of a diseased child.They sought extraordinary expenses that they expected to incur by caring for Kennadi until the age of majority in addition to the general damages resulting from Cynthia's pregnancy.
Wrongful pregnancy is an action brought by parents of a child who is born following a negligently performed sterilization procedure. In such a case, plaintiffs were traditionally limited to only general damages, "including costs associated with the 'unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the cost of delivery, lost wages, and loss of consortium."'
In determining whether extraordinary damages should be awarded in this case, the Court took special note of Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983). In that case, the Illinois Supreme Court declined to extend the scope of damages permitted in a wrongful pregnancy action to include the costs of raising a healthy, but unexpected child who was born as the result of a negligently performed sterilization procedure.The Illinois Supreme Court awarded only general damages and expressed an "unwillingness to hold that the birth of a normal healthy child can be judged to be an injury to the parents" because that concept "offends fundamental values attached to human life."
The Court also assessed the rationale utilized in Williams v. University of Chicago Hospitals, 179 Ill. 2d 80, 84 (1997).In that case, the plaintiffs alleged the defendant doctor negligently performed a tubal ligation procedure which resulted in the birth of a child with attention deficit hyperactivity disorder ("ADHD"). Plaintiffs argued that the doctor was aware that their first child had a disability, and therefore sought extraordinary expenses for the child's psychological treatment and special education. The court held the plaintiffs could not establish proximate cause without an established link between the defendants' negligence and the birth of a disabled child. The court rejected the plaintiffs' argument that the doctor's knowledge regarding their first child was enough to make the birth of another child with the same disability a foreseeable consequence of medical negligence. The court noted that the plaintiffs could not prove that the doctor caused the condition or that the defendant knew of the possibility that a child with a particular defect could be born as a result of a failed operation. More importantly, the plaintiffs could not prove that the parents were seeking to avoid a specific risk of which the defendant was aware. Therefore, no extraordinary expenses were awarded.
In the case at issue, the defendants heavily relied on the Williams casefor support. The defendants contended that the plaintiffs could not satisfy the requisite proximate cause element and therefore, it was not necessary to expand the scope of damages to include extraordinary expenses. Defendants further argued that Dr. Rosner's knowledge that plaintiffs' first child had sickle cell disease did not necessarily suggest that it was foreseeable that the birth of another child with sickle cell disease would result after a negligent tubal ligation procedure.The defendants maintained that even if the plaintiffs could establish foreseeability, they could not establish Dr. Rosner's negligenceproximatelycaused Kennadi's sickle cell disease. The defendants also argued that the expansion of damages in this case would be contrary to established public policy because "virtually everyone is born with some condition, characteristic, or trait that might be construed as rendering the person other than healthy and normal."
The court disagreed and held that the birth of a child with sickle cell disease was a foreseeable consequence of a negligently performed sterilization procedure. The court distinguished the Williams case and concluded that the requisite link between Dr. Rosner's negligence and Kennadi's condition was established. Since the plaintiffs communicated the need to avoid conception of additional children to Dr. Rosner, the birth of a second diseased child was of such a character that "an ordinarily prudent person would have foreseen it to be a likely consequence of a negligently performed tubal ligation procedure." The court explained that a plaintiff must provide evidence that a specific genetic abnormality was a foreseeable consequence of the defendant's negligence. Therefore, the court held that a parent may be awarded extraordinary damages if the unwanted pregnancy was a foreseeable consequence of a negligently performed sterilization procedure and the parent communicated their desire to avoid the resulting injury to the physician.
The court created an exception to the general rule that only general damages can be awarded in a wrongful pregnancy action. Plaintiffs in Illinois may now request extraordinary damages when the birth of a child with a congenital or genetic disorder is a foreseeable result of a negligently performed sterilization procedure. In the future, plaintiffs will likely continue to seek expansion of recoverable damages in wrongful pregnancy actions, and it will be interesting to see whether any other appellate courts follow the lead of the court in Williams v. Rosner.