The Supreme Court of Illinois announced its decision in Clark v Children's Memorial Hospital today. This was the case in which the plaintiffs of a child born with birth defects that should have been detected before birth argued they had a right to recover for the costs of taking care of the child past the age of majority. I wrote about the lower court's decision here.
I have not had a chance to read the actual opinion (which is available here), so my comments are based on a summary provided by the Illinois State Bar (here).
In deciding that the parents should not be allowed to recover for extraordinary expenses associated with the genetic disorder past the age of majority, the court relied on the general common law rule that parents have no obligation to support their adult children. The court reasoned that if the parents voluntarily accepted the burden of supporting their child after he reaches the age of majority, their willingness to do so in the absence of a legal obligation was not caused by the defendants.
If we are going to recognize a cause of action for wrongful birth, as the Court does, then the result in Clark is bad. Having concluded that the defendant caused the need for the expenses the question should be how much are the expenses going to be. The child will need to meet those expenses for the rest of his life, not just until the age of majority. Who will take care of him after the age of majority?
One problem I am having is based on the fact that the child should have been the plaintiff here. If the child had been the plaintiff, he could recover for the expenses for life, but because the parents were the plaintiffs the recovery is limited to the age of 18. But I am not sure that the child could have been the plaintiff, because then the Court might have said that a child can't recover for wrongful life. I'll have to read the opinion to see if the Court makes this distinction.
Bottom line, there won't be enough money to take care of this severely disabled child past the age of 18.
The second issue in the case is just as interesting. It asks whether the parents should be allowed to recover for emotional distress due to the birth of the child. The lower courts analyzed the issue as if the claim had been argued as a bystander's claim, requiring that the plaintiffs be present within the "zone of danger." The Supreme Court, however, decided under the facts of the case this claim was not based on witnessing what happens to someone else, but essentially a type of pain and suffering associated with what happened to the palintiffs themselves. Conceptually, this makes sense to me, but I will have to read the opinion itself to see how the court explains it to make sure the analysis is convincing.
