April 9, 2009

Illinois Court Issues Landmark Wrongful Birth Decision; Allows Parents to Seek Damages for Negligent Infliction of Emotional Distress and Lifetime Medical Expenses

Today the Illinois Appellate Court held for the first time that under Illinois law, the parents of a disabled child in a “wrongful birth” case can recover damages for the costs of caring for the child after he reaches the age of majority. The previous Illinois Supreme Court decision which first recognized a claim for wrongful birth, Siemieniec v. Lutheran General Hospital, 117 Ill.2d 230 (1987), had only approved recovery by parents in a wrongful birth case of the extraordinary costs of caring for the disabled child up to the age of majority.

Today’s decision also holds for the first time under Illinois law that the parents in a wrongful birth case may have a cause of action for negligent inflection of emotional distress against the tortfeasor physician and hospital. The child in this case has Angelman's Syndrome. The plaintiffs allege that a geneticist failed to obtain test results that confirmed that the parents were at high risk of conceiving children with this devastating disorder. Children with Angelman’s Syndrome have severe mental and emotional deficits due to a chromosomal defect, and require nearly constant care from their parents, yet are expected to reach normal adult size as they mature. In this case, because of their child’s disability, the plaintiff parents are subjected to regular physical trauma from the child due to head butting, biting, kicking, setting fires and other rough treatment. The Illinois Appellate Court found that the child's disabilities place the parents in a "zone of danger," and thus the child's parents can seek damages for their own pain and suffering in caring for the severely disabled child.

The plaintiffs are represented by Christopher T. Hurley, Mark R. McKenna and Evan Smola of Hurley McKenna & Mertz. The defendant Children’s Memorial Hospital is represented by Pam Gellen of Lowis & Gellen.

The case is Clark v. Children's Memorial Hospital, Illinois Appellate Court No. 1-08-0610.

Questions regarding wrongful birth cases, or requests for copies of the case or Complaint at Law can be directed to or at 312/553-4900.

An article discussing Wrongful Birth and Wrongful Life cases can be found in the New York Times Magazine.

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