Wrongful Death v. Wrongful Birth in Illinois

Damages Available in Illinois Wrongful Birth Vs. Wrongful Death Cause of Action

Author: Mathew A. Passen


Illinois recognizes a cause of action based on "wrongful birth." However, Illinois personal injury attorneys must be aware that the types of damages available in wrongful birth actions are typically less than in wrongful death actions.

The seminal case dealing with wrongful birth actions is Siemieniec v. Lutheran General Hosp., 117 Ill. 2d 230 (Ill. 1987). In Siemieniec, the parents of a child born with hemophilia sought to recover damages on the basis that they would have aborted the child had the defendants provided an accurate genetic diagnosis.

The Illinois Supreme Court defined "wrongful birth" as a claim for relief of "parents who allege they would have avoided conception or terminated the pregnancy by abortion but for the negligence of those charged with prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child." 117 Ill. 2d at 235.

In discussing "what elements of damages may be recovered by the parents" in wrongful birth actions, the Court first noted the "general rule" of damages in tort actions -- that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, provided that the damages are the "legal and natural consequences of the wrongful act" and "might reasonably have been anticipated." However, the Court noted that "few if any jurisdictions appear ready to apply this traditional rule of damages with full vigor in wrongful birth cases." Id. at 259.

Rather, the Supreme Court held that parents in wrongful birth actions may only recover the "extraordinary expenses - medical, hospital, institutional, educational and otherwise - which are necessary to properly manage and treat the congenital or genetic disorder." Id. at 260; see also Goldberg v. Ruskin, 128 Ill. App. 3d 1029, 1039 (3d Dist. 1984) (holding that plaintiffs in wrongful birth action may recover "medical and other expenses reasonably necessary for the care and treatment of the impairment"). Such extraordinary expenses relate to the care and treatment of the afflicted child, and "do not include the expenses associated with the raising of a normal, healthy child." Id. at 259; see also Cockrum v. Baumgartner, 85 Ill. 2d 193 (Ill. 1983).

Furthermore, the Court held that parents failed to state a cause of action for negligent infliction of emotional distress. The Court applied the Illinois "zone-of-danger rule" to bar recovery of such damages. In doing so, the Court "likened the parents to bystanders who were witnessing the effects of the hemophilia on their child" and suffered emotional distress as a consequence. Corgan v. Muehling, 143 Ill. 2d 296, 305 (ill. 1991).

Under the zone-of-danger rule, "before a plaintiff can recover for negligently caused emotional distress, he must have himself, been endangered by the negligence, and he must have suffered physical injury or illness as a result of the emotional distress caused by the defendant's negligence." Siemieniec, 117 Ill. 2d at 261. Because there were no allegations that the defendants' alleged negligence (in failing to diagnose and inform the parents of a genetic defect in the fetus) in any way endangered the parents of the impaired child, the Court barred recovery for emotional damages.

The zone-of-danger rule does not apply to "direct" victims of negligent infliction of emotional distress. See Corgan, 143 Ill. 2d at 306. However, Siemieniec makes it difficult, if not impossible, for parents to claim they are direct victims, rather than mere bystanders. Id. ("Siemieniec, therefore, simply applied the zone-of-danger rule to a bystander case, as the parents suffered emotional distress because of their child's disease").

This is not to say that top-ranked Chicago personal injury lawyers should not pursue wrongful birth actions on behalf of their clients. In wrongful birth cases where a child is born with severe genetic defects and requires significant medical care and treatment over the course of his or her life, Illinois law provides for the recovery of those "extraordinary expenses," which may be significant. Courts may even permit recovery of those expenses incurred "after the child has reached the age of majority." See Siemieniec, 117 Ill. 2d at 260.

However, cases where a child is "wrongfully" born and, because of the genetic defect, dies shortly after delivery, seem to allow for minimal damages recovery. In such cases, any "extraordinary" costs of raising the afflicted child are minimal. Furthermore, parents are precluded from recovering emotional damages as a result of the wrongful birth.

Article Source: http://www.articlesbase.com/personal-injury-articles/damages-available-in-illinois-wrongful-birth-vs-wrongful-death-cause-of-action-723737.html

About the Author

Matthew A. Passen is an experienced Chicago Personal Injury Lawyer with Passen Law Group. Mr. Passen concentrates in all areas of Illinois personal injury law, including truck accidents, auto accidents, wrongful death, brain injury, birth injury, construction accidents, and medical malpractice in the Chicago area.



Prior to joining Passen Law Group, Mr. Passen was an associate in the litigation department of Jenner & Block LLP.



Mr. Passen received his B.A. magna cum laude, Phi Bete Kappa, in Economics from the University of Michigan in 2002. Mr. Passen obtained his law degree, summa cum laude, from DePaul University College of Law in 2006, where he graduated Order of the Coif. During law school, Mr. Passen was as a member of the DePaul Law Review.



During the 2003-04 academic year, Mr. Passen clerked for the Honorable Ronald A. Guzman, United States District Court for the Northern District of Illinois. He also spent the following semester clerking at the United States Attorney\'s Office, Northern District of Illinois.



Mr. Passen is a member of the Illinois Bar. He is a member of the Chicago Bar Association, Illinois Trial Lawyers Association, Illinois State Bar Association, and the American Association for Justice. Mr. Passen also works with elementary teachers and students in Chicago-area public schools, as a volunteer in the Constitutional Rights Foundation of Chicago\'s \"Lawyers in the Classroom\" program.