Clark v. the Children's Mem'l Hosp.

• Decision Date: 26 September 2011
• Docket Number: No. 108656.,108656.
• Citation: 353 Ill.Dec. 254,955 N.E.2d 1065,2011 IL 108656
• Parties: Amy CLARK, et al., Appellees,v.The CHILDREN'S MEMORIAL HOSPITAL, et al., Appellants.
• Court: Illinois Supreme Court

2011 IL 108656

955 N.E.2d 1065

353 Ill.Dec. 254

Amy CLARK, et al., Appellees,

v.The CHILDREN'S MEMORIAL HOSPITAL, et al., Appellants.

No. 108656.

Supreme Court of Illinois.

May 6, 2011.Rehearing Denied Sept. 26, 2011.

Gary Feinerman and Andrianna Kastanek, of Sidley Austin LLP, and 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.

OPINION

Justice GARMAN delivered the judgment of the court, with 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 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, 329 Ill.Dec. 730, 907 N.E.2d 49. 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 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.

[353 Ill.Dec. 260] ¶ 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 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, 329 Ill.Dec. 730, 907 N.E.2d 49. 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'...