Kenneth Lowe Mar. 3, 2014, 2:15pm

The parents of a child afflicted with a congenital disease can assert a claim for extraordinary expenses in a wrongful pregnancy suit against a reproductive clinic and doctor, the First District Appellate Court held.

In answering a certified question from the Cook County Circuit Court, the appeals panel stressed that its Feb. 26 decision is limited to the case at the crux of its 20-page opinion and rejected the argument "that expanding the scope of damages in wrongful pregnancy cases would open the proverbial floodgates."

Justice Aurelia Pucinski delivered the opinion, with justices P. Scott Neville and Mary Anne Mason concurring.

The question came to the appellate court from a wrongful pregnancy suit Cynthia and Kenneth Williams brought against Reproductive Health Associates SC and Dr. Byron Rosner.

The couple sought the defendants' obstetric and gynecological services to undergo a tubal ligation that would render Cynthia incapable of having more children.

The Williamses, both carriers of the sickle cell anemia genetic trait, had already given birth to a son afflicted by the disease and wished to ensure they would have no more children with the condition, according to the panel's opinion.

Children of parents who both carry the trait face a 25 percent chance of being born with sickle cell anemia, a hereditary disease that causes the red blood cells to assume a brittle shape, causing a number of health complications that include a shortened life expectancy.

Rosner performed a mini-laparotomy and tubal ligation procedure on Cynthia in 2008. In 2009, however, she learned she was pregnant and gave birth to Kennadi Williams on Feb. 1, 2010.

Her daughter was born with sickle cell anemia, according to the opinion that notes it was only after Kennadi's birth that she learned Rosner had left one her ovaries and fallopian tubes intact during the 2008 procedure.

The Williamses then filed a suit against Rosner and Reproductive Health alleging medical negligence and wrongful pregnancy. They also sought extraordinary expenses associated with the care of a child suffering from such a disease, among other damages.

The defendants moved to dismiss the case, arguing that any alleged negligence did not cause the Kennadi's sickle cell disease.

They further argued there is no Illinois authority that allows parents who file wrongful pregnancy suits to recover extraordinary expenses after unsuccessful sterilization procedures and that such actions are typically limited to damages for the procedure, pain and suffering, pregnancy complications, delivery costs, lost wages and loss of consortium.

After denying the defendants' motion to dismiss, the circuit court certified a question for interlocutory review asking whether plaintiffs in wrongful pregnancy actions can recover the extraordinary expenses of raising a child with sickle cell disease when the doctor knew the plaintiffs were carriers of the trait, had a previous child with the disease and sought sterilization to avoid having another child with the disease.

In answering the question in the affirmative, the panel held that “The birth of a child with a genetic abnormality is a foreseeable consequence of a negligently performed sterilization procedure and where the parents' desire to avoid contraception precisely for that reason has been communicated to the doctor performing the procedure, parents may assert a claim for the extraordinary costs that they will incur in raising their child to the age of majority."

The appeals panel also noted that “Illinois courts have yet to determine whether plaintiffs" like the Williamses can recover extraordinary expenses for raising a child with a disease that "was reasonably foreseeable by the defendant physician who negligently performed the sterilization procedure."

“Absent authority barring Plaintiffs' prayer to recover extraordinary expenses, the court must resolve this motion in the light most favorable to Plaintiffs," Pucinski wrote.

In its opinion, the panel also rejected the defendants' argument that a ruling against them could open obstetricians and gynecologists to similar litigation for other perceived defects.

“We are also unpersuaded by defendants' argument that the expansion of damages in this case would prove problematic from a public policy standpoint,” Pucinski wrote for the court.

She added, “We disagree that expanding the scope of damages in wrongful pregnancy cases would open the proverbial floodgates to allow the parents of every child born following an unsuccessful sterilization procedure to recover extraordinary expenses for any perceived genetic abnormality, no matter how slight, possessed by their child.”

Not that the appeals panel has answered the certified question, the suit will proceed in circuit court.

Before the First District, the Williamses were represented by Chicago attorneys James D. Montgomery and Beverly P. Spearman of Cochran, Cherry, Givens, Smith & Montgomery LLC and Patrick E. Dwyer III of Dwyer, McCarthy & Associates.

The defendants were  represented by Richard H. Donohue, Karen Kies DeGrand and Todd J. Stalmack of Donohue, Brown, Mathewson & Smyth in Chicago.

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Chicago, IL 60602

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