Illinois Appellate Court Clarifies Types of Damages Available in Wrongful Pregnancy Cases

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March 27, 2014
Jennifer Stuart
SmithAmundsen Health Care Alert

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Illinois courts recognize three birth-related medical negligence tort claims: “wrongful birth,” “wrongful life,” and “wrongful pregnancy” or “wrongful conception.” The Illinois Appellate Court, First District, recently issued an opinion that explained the distinctions between these actions. In Williams v. Rosner, the plaintiff found out she was pregnant six months after undergoing a tubal ligation, and subsequently gave birth to a child with sickle cell disease. The plaintiffs already had one child with sickle cell disease, and had undergone the tubal ligation because they did not want to conceive another child with the same condition. At issue was whether the “extraordinary damages” associated with raising a child with sickle cell were recoverable under a theory of “wrongful pregnancy.”

In “wrongful birth” claims, parents allege that they would not have conceived a child or would not have carried their child to term if not for the negligence of the doctor who administered prenatal or genetic testing and failed to counsel them regarding the likelihood of giving birth to a physically or mentally impaired child.

In “wrongful life” claims, parents bring an action on behalf of the minor child who suffers from a genetic or congenital disorder, claiming that the defendant medical provider: failed to accurately perform genetic tests and inform the parents about the hereditary natures of such disorders; failed to accurately advise the child’s parents about the genetic risks associated with childbirth; or failed to perform a surgical procedure intended to prevent the birth of the child. Illinois courts have repeatedly rejected these types of actions on public policy grounds, stating that “human life, no matter how burdened, is, as a matter of law, always preferable to non-life.”

“Wrongful pregnancy” or “wrongful conception” claims are brought by parents of a child who is born following a negligently performed sterilization procedure. Historically, parents filing “wrongful pregnancy" or wrongful conception” claims have been limited to general damages, including costs associated with the “unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages, and loss of consortium.” Courts in Illinois had not previously allowed recovery of the “extraordinary expenses” damages that are available in “wrongful birth” cases. The Williams case changed this.

In Williams, the court held that where the birth of a child with a genetic abnormality is a foreseeable consequence of a negligently performed sterilization procedure, and where the parents’ desire to avoid contraception precisely for that reason has been communicated to the doctor performing the procedure, parents are able to recover the extraordinary costs that they will incur in raising their child to the age of majority. Since the parents in Williams had specifically spoken with their physician about their desire to have a tubal ligation to avoid conceiving another child with sickle cell disease, their complaint stated a valid cause of action and the case was allowed to proceed.

The Williams decision brings “wrongful pregnancy" or "wrongful conception” cases in line with “wrongful birth” cases. Neither of these theories allows recovery for the “ordinary” costs of raising an otherwise normal child. Only the “extraordinary costs” associated with raising a child with a genetic or congenital condition can be sought.