Illinois Appellate Court decides parents can recover extraordinary expenses in wrongful pregnancy action

Last month, the Illinois Court of Appeals, First District, issued an opinion in an interesting case on the character of the compensation that can be recovered in a wrongful pregnancy case. I think the case reaches the correct result, and I am sure it will eventually reach the state supreme court.  The case is called Williams v. Rosner and you can read the opinion here.

The facts of the case are relatively simple. Knowing there was a good chance that her children could be born with sickle cell disease, a woman had a doctor perform a procedure to prevent her from getting pregnant. Eventually, however, she did get pregnant and gave birth to a daughter who suffers from sickle cell disease. Arguing the doctor was negligent, the woman and her husband sued seeking compensation for their injuries including compensation for the extraordinary expenses that they would incur in raising their daughter.  The defendants filed a motion to dismiss arguing the plaintiffs could not recover for extraordinary expenses.

In Illinois, unlike in some other states, parents who seek to recover compensation for a pregnancy that they had sought to avoid (typically referred to as a "wrongful pregnancy" or "wrongful conception" case) have been limited to recover 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.  In part, this view is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.

On the other hand, Illinois has recognized the right to recover for extraordinary expenses in "wrongful birth" cases.  In these cases, the parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal testing or genetic testing and failed to counsel them of the likelihood of giving birth to a physically or mentally impaired child. In such cases, parents can recover extraordinary damages, including the medical, institutional and educational expenses that are necessary to properly manage and treat their child's congenital or genetic disorder up to the age of majority.

In Williams, the plaintiffs argued, correctly in my view, that if we apply basic torts principles, they should be allowed to recover extraordinary expenses.  A defendant in a negligence action should be liable for those injuries which are foreseeable consequences of the negligent conduct.  For this reason, if the pleadings establish that the birth of the sick child is a foreseeable consequence of a negligently performed sterilization procedure, then wrongful pregnancy plaintiffs should be able to obtain an award of extraordinary damages.  And this is precisely what the court of appeals held.

If we are going to recognize the right to recover for extraordinary damages in wrongful birth cases, it would not make sense not to recognize them in wrongful pregnancy cases.  Stay tuned.

Now, having said all that, the case creates an anomaly that should be corrected.  Assume Mom and Dad Parents decide not to have any more children because of financial reasons.  They simply can't afford another child. They go to the doctor and inform the doctor of the reason for wanting a sterilization procedure.  The doctor is negligent and the parents have another child.  The child is healthy but the parents (and the child) suffer hardship because they don't have enough financial means.  According to the current state of the law, those parents can't recover for that hardship.  They can't recover the cost of raising that child, which is precisely the value of the foreseeable consequence of the negligent conduct of the doctor.  In contrast, according to the court in Williams, the parents of a child with an inherited condition can recover because that is the foreseeable consequence of the negligent conduct.

I think the issue in both cases is the same and the cases should lead to the same result.  Thus, eventually, when Williams gets to the Illinois supreme court, I hope the court takes the opportunity to overrule the old case in which it limited recovery in wrongful pregnancy cases.