July 2011 • Volume 99 • Number 7 • Page 330
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Supreme court okays emotional distress claims for wrongful birth
But the court held in the same case that parents cannot recover the costs of caring for a disabled adult child.
Reaffirming Illinois common law more than 100 years old, the Illinois Supreme Court has found that parents have no obligation to support their adult children. As a result, in a wrongful birth action, the parents of a severely disabled child could not recover damages for the extraordinary costs of caring for him after he reaches the age of majority. They may, however, recover damages for their emotional distress as a result of the wrongful birth. The case is Clark v The Children's Memorial Hospital, No 108656, 2011 WL 1733532 (Ill Sup Ct).
The facts of Clark
Because Amy and Jeff Clark's son, Brandon, began exhibiting developmental delays at the age of one, the Clarks sought genetic testing and counseling. Brandon suffered from Angelman Syndrome, a condition characterized by growth deficiency, mental retardation, jerky movements, and other symptoms and which may be, but is not always, caused by an inherited gene mutation. After performing a genetic sequencing test, their geneticist told them that his condition was not caused by a genetic abnormality.
The Clarks then sought a second opinion from another geneticist at a different hospital, Children's Memorial. Without first obtaining the results of the first test or ordering another test, that geneticist told Amy that all known genetic mechanisms that might have caused Angelman Syndrome in Brandon had been ruled out.
In fact, both geneticists gave the Clarks incorrect information. The initial test of Brandon's DNA showed that he suffered from Angelman Syndrome because of a mutation of one of his genes. Further testing could have been, but was not, ordered to determine whether the mutation was inherited or a random occurrence.
Relying on the geneticists' incorrect advice, the Clarks then conceived and gave birth to a second child, Timothy, who, as an infant, began exhibiting the same symptoms as his brother. Ultimately, he was diagnosed with Angelman Syndrome as the result of an inherited mutation. When the Clarks eventually learned of the geneticists' errors and omissions, they filed a complaint for wrongful birth.
As a result of a partial settlement, the Clarks voluntarily dismissed a number of counts. Remaining at issue were whether they were entitled to seek damages for the extraordinary costs of caring for Timothy after he reached the age of majority and whether they might seek damages for negligent infliction of emotional distress.
Overruling Siemieniec's denial of emotional-distress claims for wrongful birth
The supreme court began by noting that it had, in Siemieniec v Lutheran General Hospital, 117 Ill 2d 230, 512 NE2d 691 (1987), recognized the tort of wrongful birth. But unlike the parents in Siemieniec, whose child was a hemophiliac, the Clarks alleged that Timothy's condition would make it impossible for him to support himself as an adult.
The court observed that the fundamental premise of tort law is that a victim should receive just compensation for any loss proximately caused by the tortfeasor. Whether the Clarks might recover damages for Timothy's postmajority support, therefore, depended on whether Illinois law imposed an obligation on them to support a disabled, dependent adult child, the court said.
To answer that question, the court first reviewed Illinois case law dating back almost 150 years. That law, it said, had evinced conflicts by the middle of the 20th century. At that point, the court said, legislatures had increasingly moved to address questions of parental postmajority support.
Turning to statutory law, the court noted the enactment of the Paupers Act of 1874, which imposed a legal duty on parents to support a child who was a poor person and unable to earn a livelihood as the result of "any bodily infirmity, idiocy, lunacy, or other unavoidable cause." That statute was repealed in 1949 as part of the enactment of the Illinois Public Aid Code. Though that law also initially imposed a similar duty, by the late 1960s it had been amended, first to restrict and then to eliminate any duty of parental support of adult children.
Currently, only one statute, the Illinois Marriage and Dissolution of Marriage Act, provides that parents of disabled adult children may be obliged to support them. 750 ILCS 5/513(a)(1). The court concluded that it might not apply this specific statutory rule, limited to dissolutions of marriage, to override Illinois's general common law rule in the context of determining damages in a common law tort action. The Clarks might not, therefore, recover damages for Timothy's post-majority support.
The court then overruled its holding in Siemieniec that the zone-of-danger rule prohibits wrongful-birth plaintiffs from recovering damages for emotional distress. That rule requires that to recover such damages, a bystander must have been so close to the accident in which the direct victim was physically injured that there was a high risk to him as well of physical impact, and must show physical injury or illness as a result of his emotional distress.
The court said that the zone-of-danger rule was not designed for wrongful birth cases, in which emotional distress is not a freestanding claim but, rather, an element of damages for the personal tort. It held that the zone-of-danger rule applies only in cases where the plaintiff's theory of liability is the negligent infliction of emotional distress and does not apply where a tort has already been committed, and the plaintiffs assert emotional distress as an element of damages for that tort.
Accordingly, the Clarks may recover damages for their emotional distress as the result of Timothy's wrongful birth. The court remanded the case to the circuit court so that the Clarks might amend their complaint, and for further proceedings.