Clark v. Children's Memorial Hospital

ILLINOIS OFFICIAL REPORTS
Supreme Court
Clark v. Children’s Memorial Hospital, 2011 IL 108656
Caption in Supreme AMY CLARK et al., Appellees, v. THE CHILDREN’S MEMORIAL
Court: HOSPITAL et al., Appellants.
Docket No. 108656
Filed May 6, 2011
Rehearing denied September 26, 2011
Held Where parents asserted the tort of wrongful birth, their claim for the
(Note: This syllabus expenses of caring for their disabled child after he reached the age of
constitutes no part of majority was properly dismissed because the common law and statutes of
the opinion of the court Illinois do not require parents to support their children after they reach the
but has been prepared age of majority; and, because the supreme court concluded here that the
by the Reporter of zone-of-danger test should not apply to plaintiffs who seek compensation
Decisions for the for emotional distress as an element of damages for the tort of wrongful
convenience of the birth, the plaintiffs should be allowed, on remand, to amend their
reader.) pleadings after they had initially sought damages for negligent infliction
of emotional distress under the zone-of-danger rule.
Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. Thomas L.
Hogan, Judge, presiding.
Judgment Judgment affirmed in part and reversed in part; cause remanded.
Counsel on Gary Feinerman and Andrianna Kastanek, of Sidley Austin LLP, and
Appeal Pamela L. Gellen and Deborah M.R. O’Brien, of Lowis & Gellen LLP,
all of Chicago, for appellants.
Christopher T. Hurley, Mark McKenna and Evan M. Smola, of Hurley
McKenna & Mertz, P.C., of Chicago, for appellees.
Thaddeus J. Nodzenski and Mark D. Deaton, of Naperville, for amicus
curiae Illinois Hospital Association.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, of Chicago (Michael
L. Vittori and Melissa A. Murphy-Petros, of counsel), for amicus curiae
Fertility Centers of Illinois, S.C.
Mark D. Prince and Andrew W. Wilson, of Marion, for amicus curiae
Illinois Trial Lawyers Association.
Justices JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Karmeier, Burke, and Theis
concurred in the judgment and opinion.
Justice Freeman concurred in part and dissented in part, with opinion.
OPINION
¶1 Plaintiffs, Amy and Jeff Clark, individually and on behalf of their minor son, Timothy,
filed a 16-count complaint against several defendants. Their claims included wrongful birth
and negligent infliction of emotional distress. The circuit court of Cook County ruled that
the damages available in a wrongful-birth action do not include the extraordinary costs of
caring for a disabled child after he reaches the age of majority. The circuit court also
dismissed plaintiffs’ claim for negligent infliction of emotional distress. Having already
reached a settlement with other defendants, plaintiffs voluntarily dismissed the remaining
counts against the remaining defendants, Children’s Memorial Hospital and Dr. Barbara
Burton, and the circuit court dismissed the case with prejudice.
¶2 The appellate court held that plaintiff parents in a wrongful-birth case may recover
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damages for the cost of caring for their dependent,1 disabled, adult child and that the
plaintiffs in this case had adequately pleaded a cause of action for negligent infliction of
emotional distress. 391 Ill. App. 3d 321. Defendants filed a petition for leave to appeal
pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Oct. 15, 2007)), which we
allowed. We also allowed Fertility Centers of Illinois, S.C., the Illinois Hospital Association,
and the Illinois Trial Lawyers Association to file briefs as amici curiae pursuant to Supreme
Court Rule 345 (Ill. S. Ct. R. 345 (eff. Dec. 6, 2005)).
¶3 For the reasons that follow, we affirm the judgment of the appellate court in part and
reverse in part.
¶4 BACKGROUND
¶5 Plaintiffs Amy and Jeff Clark filed suit against Paul Wong, M.D., Rush University
Medical Center (Rush), Baylor University Medical Center (Baylor), and Quest Diagnostics
Clinical Laboratories (Quest), alleging various theories of liability in connection with the
birth of their son, Timothy, who has Angelman Syndrome.2 They later added Children’s
Memorial Hospital (Children’s Memorial) and Barbara Burton, M.D., as defendants. Their
amended complaint alleged that Burton negligently failed to inform plaintiffs of test results
revealing that their first son, Brandon, suffered from Angelman Syndrome due to a UBE3A
genetic mutation, and that they would not have conceived Timothy had she provided them
with accurate information regarding the risk of giving birth to another child with the same
condition.
¶6 According to the complaint, Brandon, who was born in 1997, began exhibiting
developmental delays when he was about 15 months old. In 2000, plaintiffs sought genetic
testing and counseling from Dr. Wong, a geneticist at Rush, to determine whether Brandon
suffered from Angelman Syndrome, a condition that may be, but is not always, caused by an
inherited gene mutation. Dr. Wong ordered a genetic sequencing test, which was performed
by Baylor on a blood sample drawn by Quest. Dr. Wong later reported to the plaintiffs that
Brandon’s condition was “clinical” in nature and was not caused by a genetic abnormality.
¶7 Nevertheless, before conceiving another child, Amy sought a second opinion from Dr.
Burton, a geneticist at Children’s Memorial, to determine if Brandon suffered from
Angelman Syndrome due to the UBE3A gene mutation. In 2001, without first obtaining the
results of the gene sequencing test performed at Baylor or ordering another test, Dr. Burton
informed Amy that all known genetic mechanisms that might have caused Angelman
1
The parties refer to a “disabled, unemancipated adult child.” Because emancipation applies
to minors (see 750 ILCS 30/1 et seq. (West 2006)), and not to adults, we will use the more precise
term “dependent” to refer to an adult who is incapable of self-support due to a mental or physical
disability.
2
Angelman Syndrome is a congenital condition of faulty body development marked by
growth deficiency, mental retardation, eye disorders, jerky arm movements, and gait resembling that
of a puppet. 1 Attorneys’ Dictionary of Medicine A-351 (2005).
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Syndrome in Brandon had been ruled out.
¶8 The information provided to the plaintiffs by Drs. Wong and Burton, however, was
incorrect. Baylor’s genetic sequencing analysis of Brandon’s DNA indicated that he suffered
from Angelman Syndrome due to a truncating mutation of the UBE3A gene. If further testing
had been ordered based on this result, it would have revealed whether the mutation was de
novo or hereditary, that is, whether it was a random occurrence in Brandon’s genes or an
inherited mutation.
¶9 Lacking accurate and complete information and relying on Dr. Burton’s conclusion that
all known mechanisms for identifying the UBE3A gene mutation linked to Angelman
Syndrome ruled out the mutation as the cause of Brandon’s condition, the Clarks conceived
another child.
¶ 10 In March 2002, Amy gave birth to Timothy. In June 2002, she observed that Timothy
exhibited jerky and unpredictable motor movements, among other symptoms similar to
Brandon’s.
¶ 11 On September 30, 2002, after repeated unsuccessful attempts to obtain the results of the
UBE3A sequencing analysis from Dr. Wong, Amy contacted Baylor to request a copy of the
report. The Baylor staff member to whom she spoke explained that because testing was
performed under contract with the requesting physician, test results were released only to the
physician, not to the patient. However, the staff member also mentioned that the results of
Brandon’s genetic sequencing test were “abnormal.”
¶ 12 The report, which was eventually obtained through the efforts of counsel, concluded that
Brandon’s UBE3A gene was truncated and that further testing was needed to determine if
Amy was a carrier of the abnormal gene. Dr. Burton acknowledged that later testing has
revealed that Timothy’s mutation was inherited from Amy and that had she obtained the test
result from Baylor, she would have counseled plaintiffs differently.
¶ 13 Timothy, like his brother Brandon, was diagnosed with Angelman Syndrome.
¶ 14 In September 2003, plaintiffs filed their initial wrongful-birth complaint, which was
amended several times. The first amended complaint, filed on September 7, 2004, added Dr.
Burton and Children’s Memorial as defendants. Plaintiffs later voluntarily dismissed Baylor
and reached settlements with Wong, Rush, and Quest.
¶ 15 In 2006, Dr. Burton and Children’s Memorial–by then the only remaining
defendants–moved for summary judgment on the ground that plaintiffs failed to bring suit
against them within the two-year limitations period set forth in section 13-212 of the Code
of Civil Procedure (735 ILCS 5/13-212 (West 2006)). The circuit court denied the motion,
reasoning, in part, that there was “at least a question of fact” as to when the statute was
triggered and the limitations period began to run.
¶ 16 Plaintiffs subsequently filed their third amended complaint in 2008, seeking damages for
wrongful birth consisting of the extraordinary costs of caring for Timothy during his
minority, the extraordinary costs of caring for him after he reaches the age of majority, and
his lost wages. In support of their claim for the extraordinary costs of caring for Timothy
during his majority, plaintiffs alleged that Timothy “is and always will be mentally disabled,”
that Angelman Syndrome is a “permanent genetic disorder with no chance of ever being
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cured,” and that Timothy has “no chance of leading an independent life as an adult or being
emancipated.” Plaintiffs further alleged that, as a disabled adult, Timothy “will not be able
to care for himself in any way and will require substantial sums of money to sustain his life.”
As a result, plaintiffs “will continue to care for Timothy *** into his majority and will be
legally liable for some or all of these costs because Timothy will never be emancipated.”
¶ 17 Plaintiffs also sought damages for the separate tort of negligent infliction of emotional
distress.
¶ 18 The circuit court ruled that plaintiffs could recover damages for the extraordinary costs
of caring for Timothy during his minority, but could not recover damages for the
extraordinary costs of caring for him after he reaches the age of majority. Pursuant to section
2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), the court dismissed
those portions of plaintiffs’ third amended complaint alleging negligent infliction of
emotional distress and those counts seeking damages for Timothy’s lost wages and the
extraordinary medical expenses of caring for him during his majority. Because the only
remaining claim, that seeking damages for the extraordinary expenses of caring for Timothy
during his minority, would have been completely offset by the previous settlement with other
defendants, plaintiffs voluntarily dismissed this claim. The circuit court dismissed the case
with prejudice, stating there was no just reason to delay enforcement or appeal.
¶ 19 The appellate court affirmed in part and reversed in part, and remanded for further
proceedings. 391 Ill. App. 3d 321. The court reversed the circuit court’s dismissal of the
counts seeking postmajority damages and the counts alleging negligent infliction of
emotional distress. However, the appellate court affirmed the dismissal of the counts seeking
damages for lost wages. According to the court, any recovery for lost wages would be
duplicative of the damages for the extraordinary costs of caring for Timothy during his
majority. The appellate court also declined to consider defendants’ alternative argument that
the dismissal of plaintiffs’ complaint should be affirmed on statute of limitations grounds.
¶ 20 ANALYSIS
¶ 21 A motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 2006)) challenges the legal sufficiency of the complaint by alleging defects
on the face of the complaint. Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004). In ruling on a
section 2-615 motion, we accept as true all well-pleaded facts in the complaint and all
reasonable inferences therefrom. Vitro, 209 Ill. 2d at 81. The critical inquiry is whether the
allegations of the complaint, when construed in a light most favorable to the plaintiff, are
sufficient to state a cause of action upon which relief may be granted. Wakulich v. Mraz, 203
Ill. 2d 223, 228 (2003); Vitro, 209 Ill. 2d at 81. We review an order granting a section 2-615
motion to dismiss de novo. Wakulich, 203 Ill. 2d at 228; Vitro, 209 Ill. 2d at 81.
¶ 22 In Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 258 (1987), this court
recognized that the parents of a child born with a genetic or congenital disorder have a cause
of action in tort if, but for the defendant’s negligence in testing or counseling as to the risk
of giving birth to a child with such a condition, they would have avoided conception or
terminated the pregnancy. In Siemienic, the remedies sought by the plaintiff parents of a child
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born with hemophilia, a bleeding disorder, included the extraordinary medical and other
expenses involved in caring for the child during his minority and damages for their emotional
anguish and suffering. Id. at 253.
¶ 23 This court allowed recovery of damages for “the extraordinary expenses–medical,
hospital, institutional, educational and otherwise–which are necessary to properly manage
and treat the congenital or genetic disorder,” noting that the plaintiff parents were seeking
to recover only such expenses as would be incurred prior to the child’s reaching the age of
majority. Id. at 260. This court also held that the parents could not recover damages for their
emotional distress as an “element in the calculation of damages” for wrongful birth (id. at
261), because they could not state a claim for negligent infliction of emotional distress under
the “zone-of-danger rule” (id. at 262-63).
¶ 24 Two issues raised by the defendants in this appeal involve the remedies available to
successful plaintiffs in a wrongful-birth action. The first question–whether the parents may
recover damages for the extraordinary expenses of caring for the disabled child after he
reaches the age of majority–was not answered in Siemieniec because the parents in that case
did not allege their child suffered from a condition that would cause him to be financially
dependent as an adult. In the present case, the parents have alleged that their child’s
condition will make it impossible for him to be self-supporting as an adult. The second
question–whether the parents may recover damages for emotional distress caused by the
defendants’ negligence–was answered in Siemieniec in the negative. Defendants also ask this
court to review the circuit court’s ruling on their motion for summary judgment based on the
statute of limitations, which the appellate court did not consider.
¶ 25 A. Damages for Costs of Care Beyond Age of Majority
¶ 26 The circuit court ruled that while the plaintiff parents in a wrongful-birth action may
recover damages for the extraordinary costs of caring for their child during his minority, they
may not recover damages for such costs after he reaches the age of majority. The appellate
court reversed, holding that postmajority expenses are recoverable damages that compensate
parents for the “costs they will incur for caring for their disabled child.” 391 Ill. App. 3d at
330. In reaching this conclusion, the appellate court noted that in a dissolution proceeding,
“support obligations for an unemancipated, disabled child over the age of majority” are
determined on a case-by-case basis and thus found no basis for “automatically forclos[ing]
damages in a wrongful birth case for the extraordinary costs of caring [for] and supporting
an unemancipated, disabled child beyond the age of majority.” Id. at 329. The concurring
justice explained that public policy favors imposing these costs on the tortfeasor, rather than
on the parents or the taxpayers, and suggested that if this assumption regarding public policy
is incorrect, the error will be corrected through the legal or the political process. Id. at 333
(Gallagher, J., specially concurring).
¶ 27 Before this court, defendants argue that because parents have no legal obligation to
support a child beyond the age of majority, parents in a wrongful-birth suit may not recover
damages for postmajority expenses.
¶ 28 Plaintiffs assert four separate bases for allowing such damages. First, they argue that they
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may be held liable for Timothy’s postmajority expenses under Illinois common law and, as
a result, they may recover damages from the tortfeasor whose negligence resulted in their
liability. Second, they argue that Illinois statutory law supports the same result. Third, they
rely on decisions from other jurisdictions allowing plaintiff parents in wrongful-birth cases
to recover postmajority expenses as an element of damages and urge this court to follow the
reasoning of these cases. Fourth, they assert that the public policy of the State of Illinois
supports holding the tortfeasor responsible for these foreseeable costs.
¶ 29 We begin our analysis with the fundamental premise of tort law–that of just
compensation for any loss or injury proximately caused by the tortfeasor. See Siemieniec,
117 Ill. 2d at 259. Damages are recoverable to the extent necessary to place the injured party
in the position he would have occupied if the wrong had not been committed. Genslinger v.
New Illinois Athletic Club of Chicago, 339 Ill. 426, 443 (1930). See also Wilson v. The
Hoffman Group, Inc., 131 Ill. 2d 308, 321 (1989) (stating that it is well settled under our
precedent that “[t]he purpose of compensatory tort damages is to compensate the plaintiff for
his injuries, not to punish defendants or bestow a windfall upon plaintiffs”); Best v. Taylor
Machine Works, 179 Ill. 2d 367, 406 (1997) (“[t]here is universal agreement that the
compensatory goal of tort law requires that an injured plaintiff be made whole”);
Restatement (Second) of Torts § 903, cmt. a, at 453-54 (1979) ( “compensatory damages are
designed to place [a plaintiff] in a position substantially equivalent in a pecuniary way to that
which he would have occupied had no tort been committed”).
¶ 30 Thus, the plaintiffs’ ability to recover damages for the extraordinary expenses of caring
for their son after he reaches the age of majority depends on whether parents have an
obligation under Illinois law to support a disabled, dependent adult child. If they have no
such obligation, these expenses are not legal harms suffered by the parents, despite their
commitment to care for their son throughout his life and their willingness to assume these
costs voluntarily.
¶ 31 The appellate court recognized this requirement, noting that for parents to recover from
a tortfeasor for their child’s medical expenses, “they must be legally liable for the charges,
and the basis for such liability must exist prior to the creation of the charges and not arise due
to a voluntary assumption of financial responsibility after the fact.” 391 Ill. App. 3d at 328
(citing Tully v. Cuddy, 139 Ill. App. 3d 697, 699 (1985)). The question for this court,
therefore, is whether Illinois law imposes such an obligation.
¶ 32 1. Common Law
¶ 33 The generally accepted common law rule is that parents have no obligation to support
their adult children. People v. Hill, 163 Ill. 186, 189 (1896) (“The duty of parents to provide
for the maintenance of their children is a principle of natural law; but the common law does
not, like the civil law, fully enforce this mere moral obligation, but simply goes to the extent
of requiring parents to support their offspring until they attain the age of maturity.”).
¶ 34 Plaintiffs assert that the common law of Illinois recognizes an exception to this general
rule for the support of an adult child who is physically or mentally incapacitated and
incapable of supporting himself. We find, however, that the history of our common law
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reveals that the generally accepted common law rule is the law of Illinois, with specific,
narrow exceptions that have since been codified by statute.
¶ 35 According to plaintiffs, the earliest reported Illinois decision discussing the issue of
postmajority support is Plaster v. Plaster, 47 Ill. 290 (1868). Twelve years after the wife
obtained a divorce on the grounds of desertion, she sought support for the son, who had been
three years old at the time of the divorce and for whom the father had not, in the intervening
years, provided any financial support. This court said that “[a]fter the boy became able to
earn a support, in whole or in part, the father was not bound to maintain him in idleness, but
only to contribute and pay for such portion as the child could not earn by reasonable effort.”
Id. at 293. Because the record did not reveal the boy’s situation, “it would be proper to
ascertain what the boy has been capable of earning for his own support, and if that would
have been insufficient, then the remainder which was necessary should be ascertained and
allowed.” Id. Further, “[i]f the boy has attained an age that he is capable of supporting
himself,” the court would not require the father to contribute to his support. Id. at 294. If,
however, “from physical debility and impaired health, the boy is unable to earn a livelihood,
and must depend upon others for support, who should more naturally contribute to that end
than his father?” Id.
¶ 36 The issue in Plaster was not whether a parent is obliged to support a disabled adult child.
The issue was whether the mother, who had originally been awarded custody of the son, but
no support, could return to court years later seeking a support order. This court ruled that the
child, then in his teens, was entitled to support from his father to the extent that he was
unable to support himself. The court noted that if he were incapable of supporting himself,
his father should do so. The decision made no mention of what obligation either parent might
have had once the child reached the age of majority. Plaster, therefore, offers little support
for plaintiffs’ position.
¶ 37 Plaintiffs also rely on Freestate v. Freestate, 244 Ill. App. 166 (1927), in which the
appellate court was asked to determine whether a divorced father could be ordered to pay
support for a 23-year-old invalid daughter. Although this appellate court decision has no
binding authority in the trial court because it was filed before 1935 (see Bryson v. News
America Publications, Inc., 174 Ill. 2d 77, 95 (1996)), it is of historical interest. The couple
had divorced when the daughter was 13 and custody was given to the mother. No provision
for child support was made at that time. Freestate, 244 Ill. App. at 167. The mother returned
to court 10 years later, seeking support for the now-adult daughter. The appellate court ruled
that the trial court had jurisdiction in the matter and had the authority to enter a support order
despite the daughter’s age. The court cited cases from the court of appeals of Kentucky
(Crain v. Mallone, 113 S.W. 67 (Ky. 1908)) and the Supreme Court of Vermont (Rowell v.
Town of Vershire, 19 A. 990 (Vt. 1890)) as a basis for concluding that the “natural, as well
as the legal, obligation” is the same whether the child is an infant or an adult child who is
“helpless and incapable of making his support.” Freestate, 244 Ill. App. at 169-70.
¶ 38 Freestate was cited in a more recent case, Strom v. Strom, 13 Ill. App. 2d 354 (1957).
The parents divorced when their daughter was three years old. She was subsequently stricken
with polio, although the opinion does not state that she was disabled as a result. Ten years
after the divorce, at which time she would have been 15, the mother sought an increase in
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child support and reimbursement of various expenditures. Id. at 358. She also asked that the
father be ordered to pay the reasonable expenses of a college education for the girl. The trial
court denied this relief on the basis that it lacked jurisdiction. The appellate court examined
cases from Illinois and other states and found nothing in the Divorce Act to specifically
preclude an order providing for a child’s education beyond the age of majority. Id. at 362.
In the end, the court concluded that “[w]here such care and education are necessary to equip
the child for adult life and where the financial circumstances of the father are entirely
adequate to meet such requirements, equity can and should continue its jurisdiction.” Id. at
364. The court observed that “[o]ne of the fundamental rules is that a court of equity having
taken jurisdiction will retain it for all purposes and do complete justice between the parties.”
Id. at 367.
¶ 39 The Strom court rejected the reasoning of Rife v. Rife, 272 Ill. App. 404 (1933), that “by
necessary implication” the Divorce Act did not permit an award of support beyond the
child’s minority. Strom, at 363 (citing Rife, 272 Ill. App. at 410). In Rife, the father appealed
from an order that he continue to pay support for a 20-year-old daughter who had graduated
from high school and from a business school but who, because she was “frail,” could not
secure employment. Rife, 272 Ill. App. at 406. Referring to the Divorce Act, the appellate
court stated that the “rule is well established and generally recognized that the only authority
a court of chancery has to provide for the care and support of children is the power granted
under the terms of this statute, and that its power is limited by implication to the custody,
support and care of minor children.” Id. at 408. Further, the rule “is also well recognized that
in the absence of a proceeding for divorce, a court of equity has no jurisdiction either as to
the custody or support of children.” Id. Thus, the court reversed that portion of the judgment
awarding support for the adult daughter. Id. at 413.
¶ 40 In Freestate and in Strom, the appellate court allowed the trial court to exercise its
equitable power to order a noncustodial father to contribute to the support of his adult child
either because he was disabled or because she desired a college education. These cases do
not stand for the general proposition that all parents, married or divorced, have an obligation
to support an adult disabled child or to pay for a child’s college education. They suggest, at
most, that once parents submit to the jurisdiction of the court by obtaining a divorce, the
court has discretion to order postmajority support in limited circumstances. Even this narrow
principle, however, was not universally accepted, as demonstrated by the decision in Rife.
In any event, subsequent legislative enactments have rendered these cases of little value in
answering the question at bar.
¶ 41 We conclude that the common law as developed in cases through the late 1950s was in
conflict regarding the obligation of parents to support a disabled adult child and that cases
in which such support was awarded were limited to those in which a custodial parent sought
support from a noncustodial parent following a divorce. In the middle of the last century, the
issue became more and more one of statutory law.
¶ 42 2. Statutory Law
¶ 43 A statutory exception to the generally accepted common law rule was made by the
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Paupers Act of 1874, which provided that parents had the legal duty to support a child who
was a “poor person *** unable to earn a livelihood in consequence of any bodily infirmity,
idiocy, lunacy, or other unavoidable cause.” Ill. Rev. Stat. 1874, ch. 107, § 1.
¶ 44 This statute was repealed in 1949, coincident with enactment of the Illinois Public Aid
Code, which initially imposed a duty of support of adult children “in need and unable to earn
a livelihood in consequence of any unavoidable cause.” 1949 Ill. Laws 418, § 4-2. See Ill.
Rev. Stat. 1955, ch. 23, ¶ 436-12; Ill. Rev. Stat. 1965, ch. 23, ¶ 112 (providing that “parents
are severally liable for the support of any child *** 18 years of age or over whenever such
child is unable to maintain himself and is, or is likely to become, a public charge”).
¶ 45 This parental duty was substantially narrowed in 1967, when the Public Aid Code was
amended to provide that parents were obligated to support an adult child over the age of 21
only if that child was blind or permanently disabled and two conditions were met. The child
must have been “continuously dependent, in whole or in part, upon one or both of his
parents” and he must have “continuously resided in the home of a parent” except for certain
exempted temporary absences. 1967 Ill. Laws 2328, § 1.
¶ 46 Subsequent amendment of the Public Aid Code in 1969 eliminated any duty of parental
support of nonminor children, even those who are disabled. Ill. Rev. Stat. 1969, ch. 23, ¶ 10-
2.
¶ 47 The Public Aid Code presently provides that “parents are severally liable for the support
of any child under age 18, and for any child aged 18 who is attending high school, until that
child graduates from high school, or attains the age of 19, whichever is earlier.” 305 ILCS
5/10-2 (West 2006).
¶ 48 Thus, although the legislature for a time imposed a parental support obligation to support
dependent adult children, it abandoned that policy decades ago.
¶ 49 Other statutes are consistent with the generally accepted common law rule of no parental
duty of support. Under the Mental Health and Developmental Disabilities Code, “responsible
relatives” of a recipient of services from the Department of Mental Health “shall be liable
for medical costs,” excluding “service charges incurred by a child after the child reaches the
age of majority.” 405 ILCS 5/5-105, 5-115 (West 2006).
¶ 50 The Family Expense Act is a codification and expansion of common law doctrine of
necessaries, under which a wife or minor child could obtain necessary goods or services on
credit and the husband or father was liable, based on his duty to support his family. See, e.g.,
Hunt v. Thompson, 4 Ill. 179, 180 (1840) (“[A] parent is under an obligation to provide for
the maintenance of his infant children, is a principle of natural law; and it is upon this natural
obligation alone that the duty of a parent to provide his infant children with the necessaries
of life rests.”); Phillips v. Dodds, 371 Ill. App. 3d 549, 551-52 (2007) (explaining that the
Family Expense Act defines “family expenses” more broadly than mere “necessaries”).
Under this statute, “[t]he expenses of the family *** shall be chargeable upon the property
of both husband and wife, or of either of them, in favor of creditors therefor, and in relation
thereto they may be sued jointly or separately.” 750 ILCS 65/15(a)(1) (West 2006).
¶ 51 Judicial decisions interpreting this statute have consistently interpreted it as imposing an
obligation on parents only until their child attains his majority. See, e.g., Proctor Hospital
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v. Taylor, 279 Ill. App. 3d 624, 628 (1996) (“[O]nce a child reaches the age of majority, the
parents’ responsibility to support the child ceases, and the parents may no longer be held
liable for these expenses under the Expense Statute.”); Pfeil v. Weerde, 152 Ill. App. 3d 759,
761 (1987) (holding that mother may not recover damages for her voluntary payment of
medical expenses of 19-year-old daughter who lived at home; stating that “it is manifest that
a parent is not liable under the [family expense] statute for expenses an adult child incurs”).
See also Sapp v. Johnston, 15 Ill. App. 3d 119, 123-24 (1973) (father not liable for medical
expenses of adult son under Public Aid Code, family expense statute, or the common law).
¶ 52 We note that we have found no reported cases construing the Family Expense Act that
involve an adult child who was incapable of self-support due to a disability. However,
nothing in the language of the statute suggests that it should be interpreted differently if the
adult child were not capable of self-support. Excluding disabled adult children from the
scope of the Family Expense Act is also consistent with the Public Aid Code and other
statutory enactments.
¶ 53 Plaintiffs point to only one statute under which the parents of a disabled adult child may
be required to contribute to his support–section 513 of the Illinois Marriage and Dissolution
of Marriage Act, which is entitled “Support for Non-minor Children and Educational
Expenses.” 750 ILCS 5/513 (West 2006). Section 513(a)(1) of this statute provided the basis
for the appellate court’s conclusion:
“(a) The court may award sums of money out of the property and income of either
or both parties or the estate of a deceased parent, as equity may require, for the
support of the child or children of the parties who have attained majority in the
following instances:
(1) When the child is mentally or physically disabled and not otherwise
emancipated, an application for support may be made before or after the child has
attained majority.” 750 ILCS 5/513(a)(1) (West 2006).
¶ 54 The appellate court concluded in the present case that this statutory language “reflects
the legislative intent that the trial court consider the unique challenges and needs of mentally
and physically disabled children on a case-by-case basis in determining whether to award
moneys for the support thereof into their majority.” 391 Ill. App. 3d at 329. The court saw
“no cause why a different set of rules should apply here, in a nondissolution proceeding.” Id.
¶ 55 We do see a reason to apply a specific statutory rule in the context of a dissolution and
a general common law rule in the context of determining damages for a common law tort.
An examination of the history of section 513 is in order.
¶ 56 In 1967, the General Assembly amended what was then called the Divorce Act, adding
the following language:
“The court may, on application, from time to time, make such alterations in the
allowance of alimony and maintenance, and the care, education, custody and support
of the children, as shall appear reasonable and proper and the court has jurisdiction
after such children have attained majority age to order payments for their support for
educational purposes only.” (Emphasis added.) 1967 Ill. Laws 3446, approved
August 31, 1967 (codified at Ill. Rev. Stat. ch. 40, ¶ 19).
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¶ 57 By expressly limiting the circumstances under which a court may order support after a
child of divorced parents has “attained majority age,” this statute abrogated any existing
equitable doctrine that allowed courts to order support for adult children for any purpose
other than education. Thus, Freestate and Strom were legislatively overruled. To the extent
that Plaster provided any authority for imposing a postmajority support obligation, it was
also rendered obsolete.
¶ 58 Then, in 1977, the General Assembly enacted the Illinois Marriage and Dissolution of
Marriage Act. Section 513(a)(1), which was quoted by the appellate court’s opinion, was
added. Section 513(a)(2), which the appellate court did not reference, provides, in pertinent
part:
“(2) The court may also make provision for the educational expenses of the child
or children of the parties, whether of minor or majority age, and an application for
educational expenses may be made before or after the child has attained majority, or
after the death of either parent. The authority under this Section to make provision
for educational expenses extends not only to periods of college education or
professional or other training after graduation from high school, but also to any
period during which the child of the parties is still attending high school, even though
he or she attained the age of 19.” 750 ILCS 5/513(a)(2) (West 2006).
Further:
“(b) In making awards under paragraph (1) or (2) of subsection (a), or pursuant
to a petition or motion to decrease, modify, or terminate any such award, the court
shall consider all relevant factors that appear reasonable and necessary, including:
(1) The financial resources of both parents.
(2) The standard of living the child would have enjoyed had the marriage not
been dissolved.
(3) The financial resources of the child.
(4) The child’s academic performance.” 750 ILCS 5/513(b) (West 2006).
¶ 59 By enacting these provisions, the legislature expressly adopted two exceptions to the
general rule of no parental obligation for the support of adult children. This statute, in effect,
reinstates the equitable power of the court to do what was done in Freestate and Strom. See,
e.g., In re Marriage of Raski, 64 Ill. App. 3d 629, 632 (1978) (noting common law rule that
parents’ liability for child support terminates at the child’s majority, with “certain statutory
exceptions” found in the recently enacted Marriage and Dissolution of Marriage Act).
¶ 60 We conclude for several reasons that the history of section 513, viewed in light of the
other legislative enactments discussed above, reveals that Illinois law does not impose an
obligation on married parents to support a disabled child beyond the age of majority.
¶ 61 First, in light of the contrary provisions of the Public Aid Code, the Family Expense Act,
and other statutes, section 513 standing alone does not reveal an overarching legislative
policy to abrogate in other contexts the long-standing common law rule of no parental
obligation to support an adult child. Rather, by adopting the two exceptions set out in section
513 in 1977, the legislature demonstrated its ability and intent to carve out exceptions to the
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general rule when it desires to do so. It could impose a support obligation on the parents of
disabled adult children in other contexts such as the Public Aid Code, the Family Expense
Act, or the Mental Health and Developmental Disabilities Code, but has not chosen to do so.
¶ 62 Second, the clear intent of sections 513(a)(1) and (a)(2) is to provide the child of
divorced parents who is unable to support himself due to a disability or who seeks higher
education with the standard of living he would have enjoyed had his family remained intact.
See In re Marriage of Kuhn, 221 Ill. App. 3d 1, 3-4 (1991) (stating that the purpose of
section 513 “is to protect the interests of children whose parents have decided to dissolve
their marriages”). Thus, in an intact family, the parents are free to decide, for their own
reasons, whether they are willing or able to support an adult child, whatever his
circumstances. See id.
¶ 63 Plaintiffs’ brief notes that they are presently separated and could, at some future date,
divorce, and one of them might seek support for Brandon and Timothy from the other under
section 513(a)(1). This would be an application of the statute in the manner the legislature
intended–to preserve, as much as possible, the benefits of an intact family for the children
of divorce. However, if plaintiffs were to recover damages for Timothy’s postmajority
support and then divorce, these funds would be marital property, subject to division. Their
expressed intent to place any such funds in a trust for Timothy is admirable, but is not
something the court could order them to do.
¶ 64 Third, section 513 invokes the court’s equitable powers. The child of divorced parents
who seeks postmajority support due to a disability or to attend college is not entitled to
receive such support. The court may, at its discretion and in the exercise of its equitable
powers, impose a support obligation on either or both parents when such an obligation would
not otherwise exist. In contrast, the issue in the present case is not whether, as a matter of
equity, the court has the discretion to award damages to these parents for their child’s
postmajority expenses. This is an action in tort where the plaintiff parents must prove that
they are entitled–as a matter of law–to the damages sought because they represent a cost for
which they are legally responsible.
¶ 65 Finally, placing such significance on section 513 and ignoring the other statutes that limit
parental responsibility to the support of minor children would lead to unintended results. For
example, if this court were to hold in the present case that the plaintiff parents in a wrongful-
birth action have a legal obligation to support their child after the age of majority, will that
child have a claim on his parents’ estate to the disadvantage of nondisabled siblings? And
if the defendant is unable to pay the judgment and files for bankruptcy, will the parents be
liable for the child’s lifetime support? What if the damages awarded to the parents prove to
be insufficient and are consumed by the time the child reaches the age of majority? Are his
parents legally responsible for his future support? Or will parents who have a potential
wrongful-birth claim against a negligent health care provider forgo bringing suit so that they
may avoid having this new obligation thrust upon them?
¶ 66 We cannot foresee all of the potential effects that may flow from a decision by this court
that section 513 creates a parental obligation of lifetime support of disabled children, even
if the parents remain married to each other. Any effort on our part to limit application of such
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a holding to those families in which the parents have obtained a judgment in a wrongful-birth
action would be doomed to failure.
¶ 67 If the legislature prefers a different result that would place the burden of support on the
tortfeasor rather than on the parents or the taxpayers, it could do so. 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.
¶ 68 3. Case Law From Other States
¶ 69 Defendants cite numerous cases from other states and argue that the “weight of authority”
favors deciding this issue on the basis of whether state law imposes a general legal obligation
of postmajority support on parents of disabled adult children. Because Illinois law does not
impose such a legal obligation, defendants argue that we should follow the reasoning of these
cases and conclude that postmajority damages may not be recovered in this case.
¶ 70 Plaintiffs also offer several decisions in wrongful-birth cases from our sister states and
urge us to adopt a judge-made exception to the general rule of no duty of postmajority
support in the context of a wrongful-birth claim.
¶ 71 We see no need to summarize here all of the cited case law from other states because our
decision in Siemieniec provides the necessary framework. As plaintiffs note, we cited several
cases from other states, noting that these states allow plaintiff parents in wrongful-birth
actions to recover “the extraordinary costs incurred as a result of the child’s affliction after
the child has reached the age of majority” because “[t]hese courts reason that, under the
common law, where a child is incapable of supporting himself because of physical or
emotional disabilities, the parents’ obligation to support continues beyond the child’s age of
majority.” (Emphasis in original.) Siemieniec, 117 Ill. 2d at 260. By implication, we were
suggesting that when the common law imposes a support obligation on parents, damages for
postmajority support are recoverable in a wrongful-birth action. Conversely, where the
common law does not impose such an obligation, such damages may not be recovered.
¶ 72 This is consistent with defendants’ argument that, in general, in states that “impose a
statutory or common law obligation on parents to care for dependent adult children, wrongful
birth plaintiffs may recover postmajority expenses as damages.” See, e.g., Viccaro v.
Milunsky, 551 N.E.2d 8, 11 (Mass. 1990) (parents are liable under state law for “the support
of an adult child if the child is physically or mentally impaired and incapable of supporting
himself”). However, in states where state law establishes that a parent has no postmajority
duty of support, even to a disabled child, wrongful-birth plaintiffs cannot recover such
damages. See, e.g., Bani-Esraili v. Lerman, 505 N.E.2d 947, 948 (N.Y. 1987) (denying
damages for postmajority expenses in wrongful-birth case on basis that state statutes
establish that “a parent has no legal obligation to continue the support of a child after
majority”).
¶ 73 The case law from other states supports the framework we suggested in Siemieniec. If the
common law and statutory law of this state make a plaintiff legally responsible for payment
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of certain expenses, the tortfeasor who caused the harm is liable for those expenses. If the
common law and statutory law of this state do not impose such an obligation on a plaintiff,
the tortfeasor cannot be held liable for expenses that the plaintiff elects, but is not legally
obligated, to incur.
¶ 74 Because the common law and statutes of the State of Illinois do not require the plaintiff
parents to support their child after he reaches the age of majority, they may not recover his
extraordinary postmajority expenses as an element of their damages. However, they argue
that public policy justifies a departure from the general rule.
¶ 75 4. Public Policy
¶ 76 Defendants argue that the public policy of this state is clear that outside the context of
divorce, where postmajority support is limited to two contexts and is in the discretion of the
court, parents are under no legal obligation to support an adult child. Thus, they assert,
because the plaintiff parents in a wrongful-birth action are not legally obligated to support
a child who will be unable to support himself as an adult, the tortfeasor whose negligence
caused them to decide to conceive the child or to continue the pregnancy cannot be said to
have caused the parents to bear this expense. Defendants also argue that imposing these costs
on providers of genetic and prenatal testing and counseling services would discourage the
development and provision of genetic services and would create an anomaly in Illinois tort
law where parents may recover damages in a wrongful-birth action that are not available to
the child in a wrongful-life claim.
¶ 77 Plaintiffs argue that the public policy of the state is expressed in the Illinois Constitution
of 1970 and in the “central purpose” of tort law to hold a tortfeasor responsible for
foreseeable results of his negligence.
¶ 78 The appellate court did not base its holding on public policy. However, the concurring
justice wrote in toto:
“I write to concur with the majority and to make one succinct point: We believe
very simply that it is the public policy of this State to allow parents of a permanently
disabled child to allege and prove damages for the costs of caring for the child after
reaching majority. The parents have a right to allege and seek to prove an action
against tortfeasors, rather than have to assume personally the costs of providing for
the child’s lifelong needs. Moreover, we believe it is preferable for the alleged
tortfeasors to pay these costs, if found liable, than for the taxpayers to be required to
assist in paying them.
In short, if there is a tortfeasor, that person should bear the burden he, she or it
caused rather than the parents or society. If we are incorrect about our assumption
regarding the State’s public policy, it will be remedied through the legal or political
process. Before that occurs, we think the approach we have chosen is a rational one.”
391 Ill. App. 3d at 333 (Gallagher, J., specially concurring).
¶ 79 This brief statement does not offer any authority in support of the author’s opinion about
what is or should be the public policy of the State of Illinois. However, this court has noted
on more than one occasion that when we determine that our answer to a question of law must
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be based, in whole or in part, on public policy, it is not our role to make such policy. Rather,
we “discern the public policy of the state of Illinois as expressed in the constitution, statutes,
and long-standing case law.” In re Estate of Feinberg, 235 Ill. 2d 256, 265 (2009) (citing
O’Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill. 2d 333, 341 (1989)).
¶ 80 Article I, section 12, of the state constitution, known as the “open courts provision” or
the “certain remedies clause,” provides: “Every person shall find a certain remedy in the laws
for all injuries and wrongs which he receives to his person, privacy, property or reputation.
He shall obtain justice by law, freely, completely, and promptly.” Ill. Const. 1970, art. I, § 12.
¶ 81 Prior to the adoption of the new constitution in 1970, the open courts provision read:
“Every person ought to find a certain remedy in the laws for all injuries and wrongs which
he may receive in his person, property or reputation; he ought to obtain, by law, right and
justice freely, and without being obliged to purchase it, completely and without denial,
promptly, and without delay.” (Emphasis added.) Ill. Const. 1870, art. II, § 19.
¶ 82 Despite the change in wording from “ought to” to “shall,” this court has held that this
provision is merely an expression of philosophy and does not mandate that a certain remedy
be provided in any specific form. Segers v. Industrial Comm’n, 191 Ill. 2d 421, 435 (2000).
The provision requires only that there be some remedy for an alleged wrong. Berlin v.
Nathan, 64 Ill. App. 3d 940, 950 (1978) (stating that section 12 of the new constitution “like
its predecessor,” article II, section 19, of the 1870 constitution, “is an expression of a
philosophy and not a mandate that a ‘certain remedy’ be provided in any specific form”
(internal quotation marks omitted) and that “[s]o long as some remedy for the alleged wrong
exists, section 12 does not mandate recognition of any new remedy”).
¶ 83 Plaintiffs have a remedy for the alleged wrong done to them by defendants–an action for
wrongful birth, recognized as a matter of common law by this court in Siemieniec. The open
courts provision of our state constitution requires no more than this. The types of damages
available in such an action are determined by the basic premise of tort law, which we also
discussed in Siemieniec:
“The general rule of damages in a tort action is that the wrongdoer is liable for
all injuries resulting directly from the wrongful acts, whether they could or should not
have been foreseen by him, provided the particular damages are the legal and natural
consequences of the wrongful act imputed to the defendant, and are such as might
reasonably have been anticipated. Remote, contingent, or speculative damages do not
fall within this general rule. (See D. Dobbs, Remedies sec. 3.1 (1973); C.
McCormick, Damages sec. 137 (1935).)” Siemieniec, 117 Ill. 2d at 259.
¶ 84 Thus, the plaintiff parents in that case were entitled to recover the damages that flowed
from the defendants’ breach of duty, “that is, only the extraordinary expenses that are
attendant to the care and treatment of the afflicted child,” and not “the expenses associated
with the raising of a normal, healthy child.” Id.
¶ 85 In effect, we were articulating the fundamental premise of tort law, which is part of the
long-standing public policy of this state, that a tortfeasor is to be held liable for the harm that
he causes, no more and no less. Because the plaintiff parents intended to conceive and bear
a child and did so, it could not be said that the costs of child-rearing in general were caused
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by the defendant’s negligence. Thus, we limited the parents’ recovery to “the extraordinary
expenses” they would incur raising a child with hemophilia. Id. at 260.
¶ 86 In the present case, the defendants have not caused the parents to be responsible for
supporting Timothy after he reaches the age of majority. This is a burden that the parents
intend to accept voluntarily. Their willingness to do so cannot overcome the fundamental
premise that the defendant has not caused them to bear this burden.
¶ 87 In addition, if we were to hold wrongful-birth defendants liable to parents for the child’s
postmajority expenses, we would obscure the distinction we made in Siemieniec between
wrongful birth and wrongful life, a distinction that the legislature has not seen fit to alter.
¶ 88 A child who is born with a genetic or congenital condition does not have a cause of
action in this state against a health care provider whose breach of the standard of care
“precluded an informed parental decision to avoid his conception or birth.” Id. at 236. His
life, while burdened by his condition, is “as a matter of law, always preferable to nonlife.”
Id. at 239-40. We therefore rejected the premise that the child has “the right to prove, if he
can, what his unusual condition will cost when he reaches majority.” Id. at 241.
¶ 89 In the ordinary medical negligence case alleging a prenatal or neonatal injury, the child’s
claim is that but for the defendant’s negligence, he would have been born healthy. See Id. For
example, in Bauer v. Memorial Hospital, 377 Ill. App. 3d 895 (2007), the defendant hospital
was found liable to the infant and his parents for failing to diagnose and treat the newborn’s
hypoglycemia. The appellate court stated that because parents are responsible for the medical
expenses of their minor children, the common law “gives parents a cause of action against
a tortfeasor who, by injuring their child, caused them to incur the medical expenses.” Id. at
922. In this case, however, the parents’ recovery was reduced by 30% based on their
contributory negligence.
¶ 90 In Bauer, it was undisputed that because of the effects of the missed diagnosis and
delayed treatment, the child would never be self-supporting. Id. at 903-04. In an effort to
reduce the amount of damages for postmajority expenses by the amount of the parents’
contributory negligence, the hospital argued on appeal that the parents would be obligated
to support him even after the age of majority and that, therefore, the damages for his future
caretaking and medical expenses belonged to the parents, not to the child. Id. at 922-23. The
appellate court disagreed, stating that the defendants “are responsible for the costs of [the
child’s] postmajority caretaking and medical expenses, which were caused by their
negligence.” Id. at 923. Thus, these damages belonged to the child and were recoverable in
his cause of action and the damages awarded to him could not be reduced by his parents’
contributory negligence. Id.
¶ 91 The distinction between claims for wrongful life, medical negligence causing injury to
a child, and wrongful birth illustrates the public policy of this state with regard to damages
in tort. The injured plaintiff is to be made whole and the defendant is to be held responsible
for all harm proximately caused by his negligence.
¶ 92 In the wrongful-life context, there is no cause of action because the child, while
burdened, cannot be said to have suffered a legal wrong. Siemieniec, 117 Ill. 2d at 246. In the
medical negligence context, costs incurred during the injured child’s minority are damages
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to the parents while costs incurred after the age of majority are damages to the child himself.
Bauer, 377 Ill. App. 3d at 923. In the wrongful-birth context, the nature of the harm is not
that the defendant caused the child’s condition, but that the defendant deprived the parents
of the opportunity to make an informed decision. The defendant is liable for all harms
proximately caused to the plaintiff parents, which does not include any expenditures they
voluntarily make for the support of their child as an adult.
¶ 93 We conclude that based on our constitution, statutes, and common law, the public policy
of the State of Illinois favors preserving this distinction.
¶ 94 We turn to the question of damages for emotional distress.
¶ 95 B. Damages for Emotional Distress
¶ 96 Defendants next argue that the appellate court erred in holding that plaintiffs stated a
cognizable claim for negligent infliction of emotional distress. According to defendants, the
appellate court’s decision runs counter to Siemieniec, which rejected the plaintiffs’ claim for
emotional distress damages.
¶ 97 This court in Siemieniec, in assessing the plaintiffs’ emotional distress claim, applied the
zone-of-danger rule articulated in Rickey v. Chicago Transit Authority, 98 Ill. 2d 546 (1983).
Prior to Rickey, recovery for negligently inflicted emotional distress was denied unless it was
accompanied by a contemporaneous physical injury to or impact on the plaintiff. Rickey, 98
Ill. 2d at 550. Rickey replaced this “impact rule” with the zone-of-danger rule.
“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. 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. The bystander [in
addition] must show physical injury or illness as a result of the emotional distress
caused by the defendant’s negligence.” Rickey, 98 Ill. 2d at 555.
¶ 98 Siemieniec applied this rule and concluded the plaintiffs could not satisfy it because there
were “no allegations in the complaint from which it can be said that the defendants’ alleged
negligence in any way endangered the parents of the impaired child.” Siemieniec, 117 Ill. 2d
at 261.
¶ 99 Plaintiffs argue that their claim for negligent infliction of emotional distress should not
have been dismissed because they adequately pleaded facts that, if taken as true, meet the
zone-of-danger test. Specifically, they claim that they are physically endangered when caring
for Timothy. He is unable to control his upper body and as a result will strike and “head butt”
his mother. Older individuals with Angelman Syndrome often exhibit violent behavior that
can cause injury to themselves or others. Thus, as Timothy becomes larger and stronger,
instances of physical injury to his parents are likely to become more serious. His parents
assert that as a result of being in this zone of danger as they care for their disabled son and
for other reasons, they suffer severe emotional distress and that their distress is a foreseeable
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consequence of defendants’ negligence.
¶ 100 In the alternative, plaintiffs urge us to either (1) determine that because they are the
“direct victims” of the tort of wrongful birth, they are not bystanders and should not be held
to the zone-of-danger rule when they claim damages for their emotional distress or (2)
overrule this portion of Siemieniec by recognizing an exception to the zone-of-danger rule
when wrongful-birth plaintiffs also plead negligent infliction of emotional distress.
¶ 101 Defendants, in their reply brief, ask that the portion of the plaintiffs’ brief arguing that
they are “direct victims” of the tort of wrongful birth be stricken because they did not make
this argument in the appellate court. We conclude that because they properly preserved the
issue of their ability to recover damages for emotional distress in the appellate court, they
may offer an alternative argument in support of that issue as appellees in this court. For
reasons that follow, we agree with plaintiffs that they have stated a claim for emotional
distress damages as direct victims of the tort of wrongful birth.
¶ 102 Plaintiffs’ second alternative argument implicates stare decisis principles. The doctrine
of stare decisis expresses the policy of the courts to stand by precedents and not to disturb
settled points. People v. Colon, 225 Ill. 2d 125, 145 (2007); Vitro, 209 Ill. 2d at 81;
Wakulich, 203 Ill. 2d at 230. In other words, a question once deliberately examined and
decided should be considered as settled and closed to further argument, so that the law will
not change erratically, but will develop in a principled, intelligible fashion. Colon, 225 Ill.
2d at 146.
¶ 103 Stare decisis, however, is not an inexorable command. Vitro, 209 Ill. 2d at 82; Colon,
225 Ill. 2d at 146. “While adherence to the doctrine of stare decisis is important to the
stability of the law, *** when doubts are raised in the minds of the court as to the correctness
of its decision, it is its duty to re-examine the question involved in the case.” Doggett v.
North American Life Insurance Co. of Chicago, 396 Ill. 354, 360-61 (1947). If it is clear the
court has made a mistake, it will not decline to correct it, even if the mistake has been
reasserted and acquiesced in for many years. Colon, 225 Ill. 2d at 146. Nevertheless, this
court will not depart from precedent merely because it might have decided otherwise if the
question were a new one. Vitro, 209 Ill. 2d at 82; Colon, 225 Ill. 2d at 146. Moreover, any
departure from stare decisis must be specially justified, and prior decisions should not be
overruled absent good cause or compelling reasons. Vitro, 209 Ill. 2d at 82; Colon, 225 Ill.
2d at 146. In general, a settled rule of law that does not contravene a statute or constitutional
principle should be followed unless doing so is likely to result in serious detriment
prejudicial to public interests. Colon, 225 Ill. 2d at 146; Vitro, 209 Ill. 2d at 82. Good cause
to depart from stare decisis also exists when governing decisions are unworkable or badly
reasoned. People v. Sharpe, 216 Ill. 2d 481, 520 (2005); Colon, 225 Ill. 2d at 146.
¶ 104 With these principles in mind, we address plaintiffs’ contention that Siemieniec’s
application of the zone-of-danger rule in a wrongful-birth case is error.
¶ 105 As previously noted, the zone-of-danger rule was designed for a different type of case,
where the plaintiff’s theory of liability is the negligent infliction of emotional distress.
Rickey, the source of this rule, exemplifies such a case. The plaintiff, Robert, who was eight
years old, was on a descending escalator with his five-year-old brother, Richard, when
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Richard’s clothing became entangled in the mechanism, choking him. Richard could not
breathe for “a substantial period of time.” Rickey, 98 Ill. 2d at 549. Robert, who apparently
suffered no impact or injury, alleged emotional distress as a result of witnessing the accident
that severely injured his brother.
¶ 106 In such cases, where the claim of emotional distress is freestanding and not anchored to
any other tort against the plaintiff, courts have applied special restrictions such as the zone-
of-danger rule because of concerns regarding the possibility of fraudulent claims or frivolous
litigation. See Rickey, 98 Ill. 2d at 555.
¶ 107 However, these special restrictions have no logical bearing on a wrongful-birth claim,
where a tort has already been committed against the parents. Wrongful-birth plaintiffs do not
assert a freestanding emotional distress claim, but merely assert emotional distress as an
element of damages for a personal tort. “For these reasons, the physical manifestation and
zone-of-danger rules offer no occasion to reject mental distress damages in wrongful birth
cases any more than they would do so in the case of libel or invasion of privacy.” 2 Dan B.
Dobbs, Law of Remedies § 8.2, at 414 (2d ed. 1993).
¶ 108 In Siemieniec, the plaintiffs clearly saw their emotional harm claim in this light. They
sought damages for emotional distress as “a natural and foreseeable consequence of the
injury they sustained,” a consequence which “should be included as an essential element in
the calculation of damages.” Siemieniec, 117 Ill. 2d at 260-61.
¶ 109 However, in addressing this claim, this court apparently viewed it as a separate theory
of tort liability–a freestanding claim of negligent infliction of emotional distress– rather than
as an element of damages flowing from the wrongful-birth tort itself. A possible explanation
for this may lie in the questions certified by the circuit court, which appeared to treat the
parents’ claim for emotional distress as a separate tort. However, whatever the source of the
misunderstanding, this was error.
¶ 110 Our error and similar errors by the courts of other states have drawn sharp criticism. See
2 Dan B. Dobbs, Law of Remedies § 8.2, at 414 n.21 (2d ed. 1993) (citing Siemieniec and
other wrongful-birth cases that have denied emotional distress damages altogether, adding
that “[i]n some authorities the distinction between emotional distress as damages and
emotional distress as a freestanding tort seems to have been overlooked” (emphasis in
original)).
¶ 111 The nature of the error is evident when one considers that damages for emotional distress
are available to prevailing plaintiffs in cases involving other personal torts such as
defamation (see, e.g., Slovinski v. Elliott, 237 Ill. 2d 51 (2010)); conversion (see, e.g.,
Cruthis v. Firstar Bank, N.A., 354 Ill. App. 3d 1122 (2004)); and misappropriation of identity
(see, e.g., Petty v. Chrysler Corp., 343 Ill. App. 3d 815 (2003)). See also 2 Dan B. Dobbs,
Law of Remedies § 8.2, at 413-14 (2d ed. 1993) (“When it comes to mental or emotional
distress, the usual rule allows free recovery of emotional distress damages to any victim of
a personal tort.”).
¶ 112 Thus, in the wrongful-birth context, the Florida Supreme Court rejected application of
the state’s “impact doctrine,” a hybrid of the impact and zone-of-danger approaches, to
wrongful-birth cases. “[W]e are not certain that the impact doctrine ever was intended to be
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applied to a tort such as wrongful birth.” Kush v. Lloyd, 616 So. 2d 415, 422 (Fla. 1992). The
court noted that such an approach should not be applied “where emotional damages are an
additional ‘parasitic’ consequence of conduct that itself is a freestanding tort apart from any
emotional injury.” Kush, 616 So. 2d at 422. The court added that the impact doctrine “also
generally is inapplicable to recognized torts in which damages often are predominately [sic]
emotional, such as defamation or invasion of privacy.” Kush, 616 So. 2d at 422. The court
stated:
“There can be little doubt that emotional injury is more likely to occur when
negligent medical advice leads parents to give birth to a severely impaired child than
if someone wrongfully calls them liars, accuses them of unchastity, or subjects them
to any other similar defamation. A defamation may have little effect, may not be
believed, might be ignored, or could be reversed by trial publicity. But the fact of a
child’s serious congenital deformity may have a profound effect, cannot be ignored,
and at least in this case is irreversible. Indeed, these parents went to considerable
lengths to avoid the precise injury they now have suffered. We conclude that public
policy requires that the impact doctrine not be applied within the context of wrongful
birth claims.” Kush, 616 So. 2d at 422-23.
See also Greco v. United States, 893 P.2d 345, 351 n.10 (Nev. 1995) (the plaintiff “seeks to
recover for a direct and personal injury, not because of mental distress occasioned by an
injury to [her child]” (emphasis in original)); Naccash v. Burger, 290 S.E.2d 825, 831 (Va.
1982) (concluding plaintiffs’ emotional distress was “direct result of wrongful conduct”; “it
would be wholly unrealistic to say that the [plaintiffs] were mere witnesses to the
consequences of the tortious conduct involved in this case”) (cited with approval in Rich v.
Foye, 976 A.2d 819, 828 (Conn. Super. Ct. 2007)); Keel v. Banach, 624 So. 2d 1022, 1030
(Ala. 1993) (jury could conclude that defendants, in failing to inform mother of possibility
of giving birth to child with severe congenital abnormalities, “directly deprived her and,
derivatively, her husband, of the option to accept or reject a parental relationship with the
child and thus caused them to experience mental and emotional anguish upon their
realization that they had given birth to a child afflicted with severe multiple congenital
abnormalities”).
¶ 113 In light of these considerations, we conclude that we erred in Siemieniec in applying the
zone-of-danger rule to wrongful-birth plaintiffs’ claims for emotional distress. We overrule
Siemieniec on this point, and specifically hold that the zone-of-danger rule applies only in
cases where the plaintiff’s theory of liability is the negligent infliction of emotional distress.
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.
¶ 114 We note that 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.
¶ 115 C. Statute of Limitations
¶ 116 Defendants maintain that the circuit court’s order of dismissal can be affirmed on other
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grounds and, thus, that remand for consideration of plaintiffs’ claim for emotional distress
damages is not necessary. Specifically, they argue the appellate court erred in declining to
consider their statute of limitations defense as an alternate ground for affirming the circuit
court’s judgment.
¶ 117 As previously noted, in 2006, while plaintiffs’ first amended complaint was pending,
defendants moved for summary judgment on the ground that plaintiffs failed to bring suit
against them within the two-year limitations period set forth in section 13-212 of the Code
of Civil Procedure (735 ILCS 5/13-212 (West 2006)). The circuit court denied the motion,
reasoning, in part, that there was “at least a question of fact” as to when the statute was
triggered and the limitations period began to run. Subsequently, in 2008, the circuit court
entered the order at issue in this case, dismissing plaintiffs’ third amended complaint with
prejudice pursuant to section 2-615 of the Code. Defendants raised the statute of limitations
issue in the appellate court, but the question was not addressed in the appellate court’s
opinion. Defendants included the issue as one of the “points relied upon in seeking review”
in their petition for leave to appeal.
¶ 118 Plaintiffs argue initially that defendants’ statute of limitations defense is not properly
before this court. Plaintiffs note that defendants raised this defense in the circuit court on a
motion for summary judgment, which was denied. Plaintiffs cite the general rule that the
denial of a motion for summary judgment is not a final order and is therefore not appealable.
According to plaintiffs, the only issue on appeal is the circuit court’s dismissal of their
complaint under section 2-615.
¶ 119 Ordinarily, the denial of summary judgment is not appealable, because such an order is
interlocutory in nature. However, we have recognized an exception to this rule in certain
circumstances, as when the parties have filed cross-motions for summary judgment and one
party’s motion is granted and the other party’s denied. Because the order disposes of all
issues in the case, review of the denial of summary judgment may be had. In re Estate of
Funk, 221 Ill. 2d 30, 85 (2006). Our appellate court has similarly concluded that the propriety
of the denial may be considered if the case is properly before a reviewing court from a final
judgment and no trial or hearing has been conducted. DePluzer v. Village of Winnetka, 265
Ill. App. 3d 1061, 1064 (1994); La Salle National Bank v. Malik, 302 Ill. App. 3d 236, 247
(1999).
¶ 120 Here, the circuit court’s order dismissing plaintiffs’ third amended complaint with
prejudice was final and appealable. Because the circuit court’s order disposed of all issues
in the case, and because defendants have properly preserved the issue at each stage of this
litigation, we reject plaintiffs’ argument that defendants’ statute of limitations defense is not
properly before us and, in the interest of judicial economy, we review the issue. For the
reasons that follow, we hold that the circuit court correctly found that there existed a question
of material fact that precluded entry of summary judgment.
¶ 121 Section 13-212 provides, in pertinent part, that any tort action arising out of patient care
against a physician or hospital must be brought within “2 years after the date on which the
claimant knew, or through the use of reasonable diligence should have known” of the injury.
735 ILCS 5/13-212(a) (West 2006). Under the discovery rule, “a cause of action accrues, and
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the limitations period begins to run, when the party seeking relief knows or reasonably
should know of an injury and that it was wrongfully caused.” Feltmeier v. Feltmeier, 207 Ill.
2d 263, 285 (2003).
¶ 122 In the case at bar, defendants argue that plaintiffs knew or reasonably should have known
of their claim against defendants well before September 7, 2002. According to defendants,
the date of discovery thus was more than two years before September 7, 2004, the date
plaintiffs sued defendants, and plaintiffs’ claim therefore was time-barred under section 13-
212. Plaintiffs counter that the discovery date was September 30, 2002, when Amy first
learned that the result of Brandon’s UBE3A sequence analysis was “abnormal.” According
to plaintiffs, this was “the earliest [they] could possibly have discovered their cause of
action.” Plaintiffs argue the date defendants were sued, September 7, 2004, thus came within
the two-year limitations period.
¶ 123 As noted, the circuit court denied defendants’ motion, reasoning, in part, that there was
“at least a question of fact” as to when the statute of limitations was triggered and the two-
year period began to run. Our review of the record persuades us the circuit court was correct.
“The time at which a party has or should have the requisite knowledge under the discovery
rule to maintain a cause of action is ordinarily a question of fact.” Jackson Jordan, Inc. v.
Leydig, Voit & Mayer, 158 Ill. 2d 240, 250 (1994). Thus, summary judgment in this case
would be appropriate only if the undisputed facts allow for only one conclusion: that more
than two years elapsed between the time which the Clarks knew or should have known of
their injury and the date on which they filed their lawsuit. See id. Because there was a
disputed question of material fact as to when the Clarks knew or reasonably should have
known of their injury, the circuit court correctly denied defendants’ motion for summary
judgment. See Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63 (2007).
¶ 124 III. CONCLUSION
¶ 125 In sum, we affirm the judgment of the appellate court reversing the circuit court’s
dismissal of plaintiffs’ claims for negligent infliction of emotional distress. We reverse that
portion of the appellate court’s judgment holding that plaintiffs may recover damages for the
postmajority expenses of caring for their son. We also affirm the circuit court’s denial of
defendants’ motion seeking summary judgment under section 13-212. The cause is remanded
to the circuit court of Cook County for further proceedings in consonance with this opinion.
¶ 126 Judgment affirmed in part and reversed in part;
¶ 127 cause remanded.
¶ 128 JUSTICE FREEMAN, concurring in part and dissenting in part:
¶ 129 While I agree with part of today’s decision (supra ¶ 92), I do not agree with the court’s
conclusion that the Clarks cannot recover extraordinary medical expenses in this case.
Whether a parent is legally obligated to support a child past the age of 18 is irrelevant to
deciding whether a negligent doctor should be liable for postmajority damages. The only
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relevant concern is whether tort law generally should allow for parents who have been the
victims of clear negligence, as in this case, to recover the medical expenses generated for the
expenses they voluntarily will assume in order to continue to care for their disabled child.
I agree with the authority that says that parents like the Clarks are entitled to all extraordinary
medical and educational costs for the child’s life expectancy as a consequence of defendants’
negligence. I therefore respectfully dissent from that portion of today’s opinion.
¶ 130 I
¶ 131 The court stresses today that the damage issue is a matter for the legislature. The
legislature may or may not take up the court’s invitation, but the reasons given in the opinion
are not any reason to do so. The United States Supreme Court has observed that “[p]erhaps
no field of the law comes closer to the lives of so many families in this country than does the
law of negligence.” Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 73 (1943). Negligence
law is, by tradition, a matter for the judiciary. Indeed, this court’s recognition in Siemieniec
v. Lutheran General Hospital, 117 Ill. 2d 230 (1987), of a claim for medical malpractice in
genetic counseling involved the application of the doctrine of negligence. The determination
of the scope of the common law doctrine of negligence is within this court’s province.
“[J]udges rather than legislatures usually define what counts as a tort and how compensation
is to be measured.” 1 Dan B. Dobbs, The Law of Torts § 1 (2001). See also Renslow v.
Mennonite Hospital, 67 Ill. 2d 348 (1977). If this court has the authority to recognize the
claim in the first instance, it likewise has the authority to determine its character.
¶ 132 That is, in fact, what this court did in Siemieniec. Some courts have criticized the
“extraordinary costs rule,” adopted by this court in Siemieniec, i.e., parents in so-called
“wrongful birth” cases recover only the extraordinary medical and educational costs
attributable to the birth defect, and not the ordinary costs associated with child-rearing. The
criticism stems from the fact that the rule “departs from traditional principles of tort
damages.” Smith v. Cote, 513 A.2d 341, 349 (N.H. 1986). The rule “represents an application
in a tort context of the expectancy rule of damages employed in a breach of contract case.”
Id. While some courts have not allowed damages on account of this (see, e.g., Rieck v.
Medical Protective Co., 219 N.W.2d 242 (Wis. 1974)), other courts have, noting that it is
within the power of the judiciary to shape the law of negligence in order to do justice
between parties. See Smith, 513 A.2d at 349 (noting need to find a rule that will protect
defendants as well as will compensate parents); see also Deana A. Pollard, Wrongful Analysis
in Wrongful Life Jurisprudence, 55 Ala. L. Rev. 327 (2004) (suggesting that the application
of the expectancy rule, without more, results in undercompensation to the victims of this
form of malpractice).
¶ 133 Today, we pick up where Siemieniec left off: What is the extent of the extraordinary
medical and educational costs attributable to the birth defect that can be recovered in these
cases?3 While this court in Siemieniec acknowledged one popular rationale to use to answer
3
It bears noting that since this court’s decision in Siemieniec, the General Assembly has not
enacted any specific legislation in this area. This inaction stands in stark contrast to action taken by
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the question by pointing to the minority/majority analysis, it is not the only rationale to
develop in this area in the 23 years since Siemieniec was decided.
¶ 134 The injury complained of is the alleged failure of defendants to properly inform the
Clarks that their eldest son’s Angelman Syndrome was the result of a genetic defect passed
through his mother and therefore was not an accident of nature. Had the Clarks been
accurately informed of this fact by defendants, it would have weighed in their decision
whether to exercise their constitutional right to use contraceptives in order to limit the size
of their family. Griswold v. Connecticut, 381 U.S. 479, 485 (1965). Importantly, this
constitutional right protects a “distinctively personal interest” because it “involves profound
moral and personal issues” that only the patient can make. Canesi v. Wilson, 730 A.2d 895
(N.J. 1999). Thus, the injury in this particular form of medical malpractice is the parents’ lost
opportunity to make the personal decision in weighing the consequences of whether to give
birth to a child who might have permanently disabling physical and mental birth defects. The
damage sustained is all the foreseeable consequences proximately caused by that injury.
¶ 135 In analyzing this claim, it is important to keep in mind that the alleged cause of action
is based on the failure to inform the Clarks of the fact that their eldest son’s Angelman
Syndrome was genetically caused and of the consequences resulting from conception in light
of that knowledge. What is being claimed, then, is that the medical providers, through their
negligence, deprived the Clarks of the right to accept or reject a parental relationship, as they
would define that relationship. Smith, 513 A.2d at 348. Generally, the deprivation of that
right by the negligent misconduct of another has been held to create a cause of action in the
parents. Schroeder v. Perkel, 432 A.2d 834 (N.J. 1981); Naccash v. Burger, 290 S.E.2d 825,
830 (Va. 1982).
¶ 136 Importantly, the Clarks sought genetic counseling because they were already the parents
of one child with Angelman Syndrome. They knew that an additional child diagnosed with
Angelman Syndrome would never be able to care for himself in any way at any age. They
knew that another pregnancy which led to the birth of another child with Angelman
Syndrome would have serious consequences, not just on that child, but on them and their
eldest son. Such a person would require a lifetime of extraordinary medical expenses and
would need extraordinary care in order to tend to his or her daily needs. This is precisely why
the Clarks sought genetic counseling. Defendants’ negligence served to deprive the Clarks
of an informed choice of whether they wished to undertake the heavy obligations in rearing
a second child with such a debilitating condition. See Wolf Wolfensberger & Frank J.
Menolascino, A Theoretical Framework for the Management of Parents of the Mentally
Retarded, in Psychiatric Approaches to Mental Retardation 475 (Menolascino ed. 1970). Had
the Clarks received accurate medical information in a timely fashion, they might have
concluded that the life of a future child, even one with Angelman Syndrome, was worth the
cost of assuming the associated burdens and expenditures, but this is unlikely since the point
legislators in other states, which have enacted statutes specifically prohibiting claims for wrongful
birth. Note, The Right to Recovery for Emotional Distress Arising From a Claim for Wrongful Birth,
32 Am. J. Trial Advoc. 143, 157 & n.108 (2008).
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of genetic counseling was to avoid the possibility. Nevertheless, some individuals
“confronted by tragedy respond magnificently and become exemplary parents [while] others
do not. See, e.g., Becker v. Schwartz, 386 N.E.2d 807 (N.Y. Ct. App. 1978) in which the
parents subsequently put their mongoloid child up for adoption.” Schroeder v. Perkel, 432
A.2d at 845 (Handler, J., concurring in part, dissenting in part). But the real injury to the
Clarks was being deprived of the ability to weigh the pros and cons of having to rear a
second child who will eventually become an adult dependent.4
¶ 137 The Clarks’ injury does not cease to exist nor do the consequences of it disappear the day
Timothy turns 18. Timothy will never become emancipated; he will never be able to care for
himself. The Clarks therefore bear the additional burden of knowing that Timothy will never
be able to make for himself any of the decisions needed for his day-to-day care and survival,
and will not be able to look after his own best interests. It has been recognized that when
parents are denied the opportunity to make the decision denied here, important personal
interests are impaired, including the interest in preserving personal autonomy with respect
to their family. Smith, 513 A.2d at 348.5
¶ 138 As the Seventh Circuit Court of Appeals has recognized, cases such as this one, termed
“wrongful birth” actions,”6 sound in negligence and are “little different from an ordinary
medical malpractice action.” Robak v. United States, 658 F.2d 471, 476 (7th Cir. 1981). As
such, it involves a “failure by a physician to meet a required standard of care, which resulted
in specific damages to the plaintiffs.” Id. It is a recognized principle of tort law to afford
compensation for injuries sustained by one person as the result of the conduct of another. W.
Page Keeton, Prosser and Keeton on Torts § 2, at 6 (5th ed. 1984). Illinois courts have
recognized that when seeking to restore a plaintiff to the wholeness plaintiff had before the
commission of a tort, specific damages rules should not be inflexibly applied if substantial
justice would not be accomplished. Wolf v. Bueser, 279 Ill. App. 3d 217 (1996). A defendant
is liable for all reasonably anticipated injuries resulting from a wrongful act. Haudrich v.
Howmedica, Inc., 169 Ill. 2d 525 (1996).
¶ 139 It was foreseeable that as a result of defendants’ negligence, the Clarks, a couple of child-
4
Illinois law defines a “dependent” as a person who is “unable to maintain himself and is
likely to become a public charge.” 755 ILCS 5/1-2.06 (West 2008).
5
In my view, Timothy suffers injury, too, not from being given life or even from being born
with a disabling impairment, but rather from being part of a family unit that, due to defendants’
negligence, was unprepared, be it financially or emotionally or both, to deal with the consequences
stemming from his birth.
6
The terms “wrongful life,” “wrongful birth” and “wrongful pregnancy” (also termed
“wrongful conception”) are seen by some as “a play on the statutory tort of ‘wrongful death.’ ”
Alexander M. Capron, Tort Liability in Genetic Counseling, 79 Colo. L. Rev. 618, 634 n.62 (1979).
The use of such terms, however, has only “spawn[ed] confusion” (id.), the effect of which has
“distort[ed] or impair[ed] judicial vision.” Greco v. United States, 893 P.2d 345, 348 n.5 (1995). See
also Viccaro v. Milunsky, 551 N.E.2d 8, 9 n.3 (Mass. 1990).
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bearing age, would conceive a second child who would incur lifelong medical expenses. All
of the consequences that the Clarks sought to avoid in fact did come to pass here. They
conceived and had a second son who suffers from the same incurable disease that his brother
has. The disease will prevent him from taking care of himself in any way. Having not been
given the choice, prior to Timothy’s conception, of voluntarily assuming the burdens of
having a second son with Angelman Syndrome, the Clarks have alleged that they will
continue to care for Timothy’s care “into his majority.” This means more than voluntarily
paying Timothy’s extraordinary medical and educational expenses. It demonstrates the
Clarks’ intent to have a say in the care and nurture of their impaired son. It means they will
not abandon him and are committed to caring for his best interests. This is significant in
assessing the consequences of defendants’ negligence.
¶ 140 It is beyond question that Timothy’s condition will not improve once he achieves the age
of majority. He will still have Angelman Syndrome. Timothy’s condition will not magically
disappear after the age of 18. Thus, decisions made by his parents during his minority will
affect what happens to him after the age of 18. As an example, suppose the Clarks are
presented with, during Timothy’s minority, a medical treatment plan that will continue past
the age of majority and is in Timothy’s best interests to undertake? Are the Clarks foreclosed
from acting in a certain way because they will not be able, financially, to continue the
treatment once Timothy reaches the age of 18? More to the point, if Timothy is to be made
a ward of the state, will the Clarks lose their ability to make decisions for Timothy that they,
as his blood relatives, believe are in his best interests? The Clarks find themselves in this
conundrum as the direct result of defendants’ negligence to them, and it constitutes a further
legal injury to them. The Clarks should not be concerned about where the money will come
from in the future when making Timothy’s medical decisions during his minority. The only
way to compensate for this injury is to allow the Clarks to recover the extraordinary medical
and educational costs for however long Timothy is expected to live.
¶ 141 It is for this reason that the court’s minority/postmajority analysis is a faulty premise.
Initially, it completely overlooks the fact that the parents of a minor disabled child are free
to give up the child for adoption or otherwise terminate their legal, parental obligation.
Unless specific steps are taken to secure the funds in trust, parents are free to use the funds
in ways that often are not in the best interests of the child. See Greco v. United States, 893
P.2d 345, 352 (Nev. 1995); Arche v. United States, 798 P.2d 477, 486 (Kan. 1990).
Secondly, it overlooks the fact, noted above, that no material difference in the condition will
occur at the age of majority. The Florida Supreme Court recognized this and, as a result, held
that a parents’ claim for extraordinary damages is not dependent “on any future parental duty
owed *** after [the child] reaches majority.” (Emphasis in original.) Kush v. Lloyd, 616 So.
2d 415, 424 (Fla. 1992). Such a rule best preserves the parents’ present role as “guardians
of the best interests of an impaired child.” Id. It bears repeating that the parents would not
be faced with these types of critical-care decisions had the defendants not withheld material
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information that they were dutybound to give to them.7
¶ 142 The normal measure of damages for the commission of a tort is all damages that are the
proximate result of the tortfeasor’s negligence. Timothy’s birth and all extraordinary
expenses resulting from it were the proximate result of defendant’s negligence. Put another
way, but for defendants’ breach of duty to properly advise the Clarks, they would not have
been put in the position they now are in: having a second child with Angelman Syndrome
who will never be able to care for himself and will never become emancipated and for whom
they will need to make critical decisions for the future. Had the Clarks been given the right
to decide, with accurate information, whether to risk conception, they would have weighed
not only how that decision would affect that second child, but also how a second child would
affect their current family, both in terms of financial and emotional commitments. The only
way to compensate them fully and fairly is to allow them to recover the extraordinary
medical and educational costs that Timothy will need for the duration of his life expectancy.
Such an award satisfies the purpose of tort damages because it serves to compensate the
victims, deter negligence, and encourage due care. See Siemieniec, 117 Ill. 2d at 258. In my
view, the Clarks should be allowed to recover all extraordinary expenses caused by the
impairing condition for the duration of the child’s life expectancy. Justice strongly favors this
recognition, and I can find no countervailing policy to hold otherwise.
¶ 143 One final observation needs to be made with respect to how such extraordinary damages
should be managed. Given the procedural posture of this case, we have no way of knowing
how long Timothy will live. He may not survive his minority. Any award made in these types
of cases should be placed in a reversionary trust, whether the reward be one limited to the
minority of the child or, as I suggest, for the lifetime of the child, however long it is proven
at trial to be. Under such a trust, the money would be disbursed as needed to pay for the costs
of the impaired person. Upon death, the remainder, if any, would be returned to the
defendant. This merits attention for two primary reasons. First, it assures the impaired
individual will be adequately cared for and, secondly, it assures that, if the impaired
individual dies before reaching majority or the age of his life expectancy, the parents do not
receive a windfall. The use of such trusts have been cited with approval by other courts. See
Robak v. United States, 503 F. Supp. 982 (N.D. Ill. 1980); Kush, 616 So. 2d at 424.
¶ 144 II
¶ 145 Rather than undertake an analysis that assesses the true nature of the injury suffered by
the Clarks and its consequences, the court employs a contradictory statutory analysis to hold
that the parents cannot recover extraordinary expenses incurred past the age of majority. The
primary statute relied upon is a provision from the Public Aid Code which obligates parents
7
Other courts have noted that by recognizing the parents’ right to recover all extraordinary
medical and educational costs for the child’s lifetime in the parents’ cause of action, they need not
address the more difficult questions posed by wrongful-life causes of action since any reward to the
child would be duplicative of that given to the parents. See Rich v. Foye, 976 A.2d 819 (Conn.
2007); Smith, 513 A.2d at 354.
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to pay for only the support of a child under 18 years old. Essentially, because the Clarks are,
as one court has described, “free to bid their children a fiscal farewell at age 18” (Childers
v. Childers, 552 P.2d 83, 85 (Wash. App. 1976)), they cannot be held legally responsible for
any of the extraordinary medical expenses necessary for Timothy’s care past the age of
majority and thus cannot recover such damages from defendants.
¶ 146 I do not see how this section of the Public Aid Code applies here. Those parents who
receive state aid are required to reimburse the state for such services. To the extent that
Timothy may ultimately receive benefits from state aid agencies, such agencies are
empowered to seek reasonable compensation from beneficiaries who have sufficient financial
means. In any event, as I demonstrated above, defendants’ liability to the Clarks is not
dependent upon the parents’ liability for the expenses, but on the parents’ status as Timothy’s
guardians.8
¶ 147 Parenthetically, I note that in determining the Public Aid Code applies in this case, the
court asks, in one of its many “what if” questions: “will that child have a claim on his
parents’ estate to the disadvantage of nondisabled siblings?” Supra ¶ 65. In fact, the child
would have a claim, not over the “parents’ estate,” but on the surviving parent’s estate under
the Probate Act because Timothy is a dependent under the Act. See 755 ILCS 5/5-15-2 (West
2008).
¶ 148 Indeed, the court’s view of section 10-2 of the Public Aid Code renders its construction
of section 513 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750
ILCS 5/513 (West 2006)) contradictory at best and unconstitutional at worst. The court
acknowledges that under this statute, parents may be required to provide support for a
disabled adult child. Section 513(a)(1), which the appellate court below relied on in
concluding wrongful-birth plaintiffs could recover postmajority damages, provides:
“(a) The court may award sums of money out of the property and income of either
or both parties or the estate of a deceased parent, as equity may require, for the
support of the child or children of the parties who have attained majority in the
8
While the Public Aid Code speaks of parental liability ending at the age of 18, other statutes
reveal that the General Assembly’s view of the parental obligation is not static. Section 12-21 of the
Criminal Code of 1961, for example, imposes criminal liability for failure to provide proper care for
a disabled person. 720 ILCS 5/12-21 (West 2008). Moreover, under the federal Health Care Reform
Bill, Congress has required that parents keep their dependent children on their insurance policies for
ages that go beyond 18. Illinois has already enacted legislation which implements the Congressional
mandate. 215 ILCS 5/356z.12 (West 2008). These divergent expressions of legislative intent in this
area further underscore the fallacy in analyzing the damages question in terms of minority/majority.
Tending to family members who are unable to take care of themselves has long been seen as
exemplary in the eyes of both Congress and the General Assembly. In Illinois, the parents of a
disabled person who are the person’s custodial caretakers are entitled to make a claim against the
estate of such a person under the Probate Act. 755 ILCS 5/18-1.1 (West 2008). Those who provide
care for disabled adults are entitled to federal and State tax breaks. 26 U.S.C. §§ 22, 152. These
types of provisions demonstrate a public policy that supports, not deters, family unity in dealing with
disease and aging.
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following instances:
(1) When the child is mentally or physically disabled and not otherwise
emancipated, an application for support may be made before or after the child has
attained majority.” 750 ILCS 5/513(a)(1) (West 2006).
The court today concludes that section 513(a)(1), as well as section 513(a)(2), which deals
with postmajority educational expenses, do not apply beyond the divorce context, stating:
“[T]he clear intent of sections 513(a)(1) and (a)(2) is to provide the child of divorced
parents who is unable to support himself due to a disability or who seeks higher
education with the standard of living he would have enjoyed had his family remained
intact.” Supra ¶ 62.
However, if there is, as the court asserts, no postmajority support obligation for both parents,
under the Public Aid Code, i.e., an intact family situation, then there can be no such
obligation in the divorce situation. Divorce proceedings cannot create a greater obligation
on the parents individually than there was originally. Moreover, if divorced parents may be
required to provide support which married parents have no obligation to provide, this
presents serious, potential constitutional questions concerning both equal protection and due
process.
¶ 149 The court goes on to state:
“Plaintiffs’ brief notes that they are presently separated and could, at some future
date, divorce, and one of them might seek support for Brandon and Timothy from the
other under section 513(a)(1). This would be an application of the statute in the
manner the legislature intended–to preserve, as much as possible, the benefits of an
intact family for the children of divorce.” Supra ¶ 63.
This construction of section 513 is such that the court seems to be encouraging divorce as
the way around its ruling. The court’s construction of the statute actually encourages a
divorce in such situations. The suggestion, callous as it is in the face of the tragedy this
family has endured, unsurprisingly contravenes the legislative intent behind the Marriage
Act. Specifically, our General Assembly has directed that the provisions of the Marriage Act
are to be “liberally construed and applied to promote its underlying purposes,” which include
“strengthen[ing] and preserv[ing] the integrity of marriage and safeguard[ing] family
relationships.” 750 ILCS 5/102(2) (West 2006).
¶ 150 III
¶ 151 In discussing the issue of damages in cases such as this, more than one court has noted
that “law is more than an exercise in logic and logical analysis, although essential to a system
of ordered justice, should not become an instrument of injustice.” Procanik by Procanik v.
Cillo, 478 A.2d 762 (N.J. 1984); Turpin v. Sortini, 643 P.2d 954, 965 (Cal. 1982). If the state
of the law in Illinois is, in fact, what the court holds it to be, then it may be high time that this
court reconsider its refusal, in Siemieniec to recognize so-called “wrongful-life” claims.
¶ 152 In explaining its rejection of wrongful life, the court noted that most courts in other
jurisdictions had reached the same result. One reason is the general unwillingness to hold that
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a child can recover damages for achieving life:
“The threshold problem has been the assertion by the infant plaintiffs not that they
should not have been born without defects, but that they should not have been born
at all. The essence of the infant’s cause of action is that the negligent conduct of the
defendants deprived the child’s mother from obtaining an abortion which would have
terminated its existence. [Believing] that human life, no matter how burdened, is, as
a matter of law, always preferable to nonlife, the courts have been reluctant to find
that the infant has suffered a legally cognizable injury by being born with a
congenital or genetic impairment as opposed to not being born at all.” Siemieniec,
117 Ill. 2d at 239-40.
A related problem is the difficulty of measuring appropriate damages, which involves a
calculation “dependent upon the relative benefits of an impaired life to no life at all, ‘[a]
comparison the law is not equipped to make.’ ” Id. at 240 (quoting Becker v. Schwartz, 386
N.E.2d 807, 812 (N.Y. 1978)).
¶ 153 This court also emphasized “the preciousness and sanctity of human life” as a basis for
rejecting wrongful-life claims. It agreed with those courts which “have reasoned that
recognizing a duty to the unborn child to prevent his birth with defects represents a
‘disavowal’ of the sanctity of life. Such a disavowal of life offends society’s deeply rooted
belief that life, in whatever condition, is more precious than nonexistence.” Siemieniec, 117
Ill. 2d at 250. The court quoted the Supreme Court of Idaho:
“Basic to our culture is the precept that life is precious. As a society, therefore, our
laws have as their driving force the purpose of protecting, preserving and improving
the quality of human existence. To recognize wrongful life as a tort would do
violence to that purpose and is completely contradictory to the belief that life is
precious.” Blake v. Cruz, 698 P.2d 315, 322 (Idaho 1984) (quoted in Siemieniec, 117
Ill. 2d at 250).
Pointing to Illinois’ “strong public policy of preserving the sanctity of human life,” the court
stated: “To recognize that [a child] has a fundamental right not to be born would thus
undermine this legislatively expressed policy favoring childbirth over abortion.” Siemieniec,
117 Ill. 2d at 249.
¶ 154 This policy regarding the sanctity of human life remains in effect in Illinois. Siemieniec
has not been overruled on this point. However, a “high regard for the sanctity of life,”
however noble sounding on paper, means nothing if it not honored in “real life.” A court that
embraces this as its public policy should not ignore the needs of the living nor should it allow
those who are negligent to rely on the public to foot the bill when a child born as a result of
that negligence reaches the age of majority. The Clarks’ complaint alleges, in support of their
claim for postmajority damages:
“Timothy *** is and always will be mentally disabled. Angelman Syndrome is
a permanent genetic disorder with no chance of ever being cured. Timothy *** has
no chance of leading an independent life as an adult or being emancipated. As such,
Timothy *** is now a disabled minor and after he turns 18 he will be a disabled
adult. As a disabled adult, Timothy *** will not be able to care for himself in any
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way and will require substantial sums of money to sustain his life.”
The court holds today that the Clarks may not recover any of these “substantial sums” from
defendants. As a result, they will be left to shoulder these expenses on their own, or, more
likely, will be forced to place Timothy in the care of the state, possibly away from his family.
Either way, the effect on Timothy’s quality of life, already burdened with severe disabilities,
undoubtedly will be negative. Ironically, this unfortunate result arises, in large part, from
Siemieniec’s regard for the sanctity of human life, an important basis for rejecting wrongful-
life claims. But placing Timothy and his parents in such a predicament hardly demonstrates
a high regard for the preciousness and sanctity of human life. Nor does it further the purpose
of “protecting, preserving and improving the quality of human existence” (Blake, 698 P.2d
at 322). If such a predicament is the inevitable result of Siemieniec’s rejection of wrongful
life, perhaps this decision should be re-examined.
¶ 155 As one legal commentator has recognized, the above scenario
“may leave the real victim, the newly emancipated disabled person with little or no
ability to earn even minimal wages, without compensation, relegating him to a state
institution despite the possibility that he could lead an independent life with
sufficient financial resources. Thus, recognizing wrongful birth but not wrongful life
may seriously undercompensate for the damages caused by the malpractice, shifting
the financial responsibility onto the taxpayers when parental responsibility ceases
upon emancipation.” Deana A. Pollard, Wrongful Analysis in Wrongful Life
Jurisprudence, 55 Ala. L. Rev. 327, 367-68 (2004).
Justice Gallagher, writing separately in the appellate court, made a similar point, though
couched in terms of a wrongful-birth action rather than one for wrongful life. The appellate
court, of course, was bound to follow Siemieniec’s rejection of wrongful life.
“We believe very simply that it is the public policy of this State to allow parents of
a permanently disabled child to allege and prove damages for the costs of caring for
the child after reaching majority. The parents have a right to allege and seek to prove
an action against tortfeasors, rather than have to assume personally the costs of
providing for the child’s lifelong needs. Moreover, we believe it is preferable for the
alleged tortfeasors to pay these costs if found liable, than for the taxpayers to be
required to assist in paying them.” 391 Ill. App. 3d at 333 (Gallagher, J., specially
concurring).
As I noted at the outset of this opinion, the court stresses the need for legislative action in
this area. It is my belief that legislative action is necessary in light of the court’s analysis of
the injury and its attendant damages in cases such as this. It is my sincere hope that the
General Assembly will look into this area of the law and provide the necessary redress for
future plaintiffs who are put into the situation the Clarks find themselves in through no fault
of their own.
¶ 156 I have suggested in Part I of this opinion a judicious way to compensate plaintiffs that is
compatible with normal tort principles. This includes the use of a reversionary trust that
would ensure both justice as well as fairness to all involved: the victimized parents, the
victimized child, and the tortfeasor. Nothing in today’s opinion indicates that my suggestions
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contravene in any way any public policy of this state. Although the medical profession may
have let down the Clarks, Illinois’ legal system need not be allowed to do the same.
¶ 157 In sum, I would allow the Clarks to recover as damages for negligence in this medical
malpractice action all extraordinary expenses for Timothy’s care in his lifetime. I base this
not on any legal duty of the parents to support Timothy past majority, but on the parents’
status as his current guardians to provide for his care.
¶ 158 I do agree with the court’s decision to overrule that portion of Siemieniec which
erroneously applied the so-called “zone of danger” rule to defeat claims for emotional
distress arising from negligence in genetic testing. I agree that the rationale used in
Siemieniec was inapplicable to the negligence at issue in this case and join in that portion of
today’s opinion. Ironically, the court relies strongly on Kush v. Lloyd, the same Florida
Supreme Court case that I rely on in answering the damages question. I believe Kush, which
addressed facts remarkably similar to those here, is well reasoned on all of the complex
issues presented in these types of medical malpractice cases. I also agree with the court’s
resolution of the statute of limitations issue. Accordingly, I join in that portion of today’s
opinion as well.
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