Ill. SC rules in wrongful birth case

By Jessica M. Karmasek | May 13, 2011


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court has remanded a case in which a couple alleged various theories of liability in connection with the birth of their second child, who, like their first child, suffers from a rare genetic disease.

Amy and Jeff Clark, the plaintiffs in the case, alleged that Dr. Barbara Burton of The Children's Memorial Hospital was negligent in not informing them of test results showing that their first son, Brandon, suffered from Angelman Syndrome due to a UBE3A genetic mutation.

Brandon, who was born in 1997, began exhibiting developmental delays at about 15 months old.

Before the Clarks decided to have another child, they sought the opinion of Burton, a geneticist at Children's Memorial.

In 2001, Amy Clark was told by the doctor that all "known mechanisms" for the genetic defect that was feared "had been ruled out." So, the couple chose to conceive again.

Their second son, Timothy, was born in 2002. Months later, he exhibited "jerky" and unpredictable motor movements, among other symptoms similar to his older brother's.

The Clarks filed a 16-count complaint against several defendants, including Burton and the hospital. Their claims included wrongful birth and negligent infliction of emotional distress.

Initially, the defense alleged that all the claims were barred by the statute of limitations and asked for summary judgment, which was denied because the Cook County Circuit Court found there were issues of fact.

The couple's complaint also sought to recover the anticipated cost of caring for the child after he reached the age of majority -- when it was expected that he would be unable to care for himself -- and sought damages for emotional distress. The circuit court rejected both of the plaintiffs' claims and dismissed the case with prejudice. The Clarks appealed.

The appellate court ruled that the plaintiff parents in a wrongful-birth case may recover damages for the cost of caring for their dependent, disabled, adult child and that the plaintiffs in this case had adequately pleaded a cause of action for negligent infliction of emotional distress. It did not reach the limitations issue.

The defendants appealed to the state Supreme Court.

Justice Rita B. Garman authored the Court's 32-page majority opinion.

The Court affirmed the judgment of the appellate court reversing the circuit court's dismissal of the plaintiffs' claims for negligent infliction of emotional distress. It reversed that portion of the court's judgment holding that plaintiffs may recover damages for the post-majority expenses of caring for their son. It also affirmed the circuit court's denial of the defendants' motion seeking summary judgment, finding that there were issues of fact.

The Court rejected the theory that expenses could be paid beyond the age of majority because the legal liability of the parents terminates at this time, though it admitted that the expenses will continue and may eventually be borne by taxpayers.

"Absent such legislative guidance, however, we conclude that under the common law and statutes of Illinois, parents are not obligated to support a child after he reaches the age of majority, even if he is unable to support himself, unless ordered to do so pursuant to section 513 of the Marriage and Dissolution of Marriage Act," it wrote.

As to the damages for emotional distress, the Court pointed to a 1983 case in which it had declared a "zone-of-danger" rule for such claims.

Basically, under the zone-of-danger rule, a bystander who is in a zone of physical danger and who, because of the defendant's negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress, the Court explained.

This rule does not require that the bystander suffer a physical impact or injury at the time of the negligent act, but it does require that he must have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact, it said.

That decision, the Court said, cannot appropriately be applied in this case. For this lawsuit is described as action for "wrongful birth," in which the wrong that was done to the parents is that they were deprived of an opportunity to make an informed decision.

"It does not apply where, as in a wrongful-birth case, a tort has already been committed against the plaintiffs and they assert emotional distress as an element of damages for that tort," the Court wrote.

"We note that the plaintiffs, in drafting their complaint, fashioned their pleadings to meet the zone-of-danger test. Because we now reject that test, plaintiffs should be allowed, on remand to the circuit court, to amend their pleadings accordingly."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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