Renslow v. Mennonite Hospital

• Decision Date: 08 August 1977
• Docket Number: No. 48782,48782
• Citation: 67 Ill.2d 348,10 Ill.Dec. 484,367 N.E.2d 1250
• Parties: , 10 Ill.Dec. 484, 91 A.L.R.3d 291 Emma M. RENSLOW, Individually and as mother and next friend of Leah Ann Renslow, a minor, Appellee, v. MENNONITE HOSPITAL et al., Appellants.
• Court: Illinois Supreme Court

Page 1250

367 N.E.2d 1250

67 Ill.2d 348, 10 Ill.Dec. 484, 91

A.L.R.3d 291

Emma M. RENSLOW, Individually and as mother and next friend of Leah Ann Renslow, a minor, Appellee, v. MENNONITE HOSPITAL et al., Appellants.

No. 48782.

Supreme Court of Illinois.

Aug. 8, 1977.

Rehearing Denied Oct. 3, 1977.

Heyl, Royster, Voelker & Allen, Peoria (Lyle W. Allen and B. Douglas Stephens, Jr., Peoria, of counsel), for appellant Mennonite Hospital.

Costigan, Wollrab, Fraker, Wochner & Neirynck, and Paul Schillinger, Bloomington, for appellant Hans Stroink, M.D.

Strodel & Kingery, Assoc., Peoria (Robert C. Strodel and Edward R. Durree, Peoria, of counsel), for appellee.

THOMAS J. MORAN, Justice, delivered the decision of the court and the following opinion in which GOLDENHERSH and CLARK, Justices, join:

This is a negligence action brought by a mother individually and on behalf of her minor daughter, Leah Ann Renslow, against defendants, a hospital and its director of laboratories. The trial court dismissed that portion of the complaint which sought damages for the minor (hereinafter, plaintiff), concluding that it had failed to state a cause of action. An appeal under Supreme Court Rule 304(a) (58 Ill.2d R. 304(a)) was perfected. The appellate court reversed the trial court (40 Ill.App.3d 234, 351 N.E.2d 870) and issued a certificate of importance. Only the minor plaintiff's cause of action is before us.

There is but one issue: Does a child, not conceived at the time negligent acts were committed against its mother, have a cause of action against the tortfeasors for its injuries resulting from their conduct?

Plaintiff's six-count complaint for negligence and willful and wanton misconduct alleges that in October of 1965, when her mother was 13 years of age, the defendants, on two occasions, negligently transfused her mother with 500 cubic centimeters of Rh-positive blood. The mother's Rh-negative blood was incompatible with, and was sensitized by, the Rh-positive blood. Her mother had no knowledge of an adverse reaction from the transfusions and did not know she had been improperly transfused or that her blood had been sensitized. In December 1973 she first discovered her condition when a routine blood screening was ordered by her physician in the course of prenatal care. Plaintiff further asserts that the defendants discovered they had administered the incompatible blood, but at no time notified her mother or the mother's family.

The resulting sensitization of the mother's blood allegedly caused prenatal damage to plaintiff's hemolitic processes, which put her life in jeopardy and necessitated her induced premature birth. Plaintiff was born on March 25, 1974, jaundiced and suffering from hyperbilirubinemia. She required an immediate, complete exchange transfusion of her blood and another such transfusion shortly thereafter. It is further alleged that, as a result of the defendants' acts, plaintiff suffers from permanent damage to various organs, her brain, and her nervous system.

The trial court dismissed plaintiff's cause of action because she was not "at the time of the alleged infliction of the injury conceived." The Fourth District Appellate Court, in a careful and well-reasoned opinion, emphasized that the defendants were a doctor and a hospital, and held that there was no showing "that the defendants could not reasonably have foreseen that the teenage girl would later marry and bear a child and that the child would be injured as the result of the improper blood transfusion." (40 Ill.App.3d 234, 239, 351 N.E.2d 870, 874.) The court correctly assessed the distinction between this case and previous cases permitting suit for paternal injuries. Here, the negligent force, which had its impact upon the infant in its prenatal state, was set in motion years prior to plaintiff's conception. The court observed that in other types of tort cases "liability has not been barred because the allegedly wrongful conduct occurred long before the resultant injury (when) duty and causation can be established." (40 Ill.App.3d 234, 239, 351 N.E.2d 870, 874.) Agreeing with the conclusion reached in Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir. 1973), 483 F.2d 237, the appellate court found no reason to deny a cause of action to a person simply because he had not yet been conceived at the time of the wrongful conduct.

In 1884, Mr. Justice Holmes rendered a landmark decision, Dietrich v. Inhabitants of Northampton (1884), 138 Mass. 14, 52 Am.Rep. 242, denying an action for the wrongful death of a child which did not survive its premature birth. This court, in Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 56 N.E. 638, 641, followed Dietrich by holding that an action for injuries could not be maintained by a plaintiff who at the time of the injury was a prenatal infant with no separate legal existence. Mr. Justice Boggs' dissent urged that it was "sacrificing truth to a mere theoretical abstraction to say an injury was not to the child but wholly to the mother," when the fetus was independently viable at the time of the injury. (184 Ill. 359, 370, 56 N.E. 638, 641.) Mr. Justice Boggs pointed out that it was clearly demonstrable that "at a period of gestation in advance of * * * parturition the foetus is capable of independent and separate life, and that though within the (mother's body) it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life when separated from the dead body of the mother." The cases for the next 46 years after Allaire uniformly denied recovery to the prenatally injured plaintiff. Nevertheless, the impact of Mr. Justice Boggs' dissent eventually turned the tide toward prenatal recovery. Bonbrest v. Kotz (D.D.C.1946), 65 F.Supp. 138, was the first decision to recognize a common law right of action for prenatal injuries. It relied heavily on Mr. Justice Boggs' reasoning that an infant should be recognized as having a legal existence separate from its mother's at such time as it was capable of sustaining life separate from her. After Bonbrest, there followed what was perhaps the most rapid reversal of a common law tradition, a turnabout documented by this court and others at length. (See Amann v. Faidy (1953), 415 Ill. 422, 114 N.E.2d 412; Chrisafogeorgis v. Brandenberg (1973), 55 Ill.2d 368, 304 N.E.2d 88; Prosser, Torts, sec. 55, at 335-38 (4th ed. 1971); Annot., 40 A.L.R.3d 1222-71 (1971).) This court, in Amann v. Faidy (1953), 415 Ill. 422, 432, 114 N.E.2d 412, overruled Allaire and held that there is a right of action for the wrongful death of a viable child, injured in utero, who is born alive but thereafter dies. Rodriguez v. Patti (1953), 415 Ill. 496, 114 N.E.2d 721, extended a common law right of action for personal injuries to an infant viable when wrongfully injured in utero. In Chrisafogeorgis v. Brandenberg (1973), 55 Ill.2d 368, 304 N.E.2d 88, this rationale was further extended to permit a wrongful death action for a viable child wrongfully injured in utero and thereafter born dead. By 1972, the initial barriers to a right of action for injury inflicted prenatally had been removed in each jurisdiction where the question had arisen. Comment, Wrongful Birth, the Emerging Status of a New Tort, 8 St. Mary's L.J. 140, 141. n.5 (1976).

Although we have not decided whether a surviving infant has a right of action for injuries sustained in utero during a previable state of its development, our appellate courts have answered that question in the affirmative. Sana v. Brown (1962), 35 Ill.App.2d 425, 183 N.E.2d 187; Daley v. Meier (1961), 33 Ill.App.2d 218, 178 N.E.2d 691. See also Rapp v. Hiemenz (1969), 107 Ill.App.2d 382, 246 N.E.2d 77, where an action for wrongful death as the result of prenatal injuries to a previable fetus, born dead, was denied.

The complaint in the case sub judice contains no allegation that the plaintiff was viable when her injuries were sustained. We, therefore, must consider whether the plaintiff must allege that she was viable at the time her injuries were sustained.

The rule permitting a cause of action only where the child is viable at the time of the injury has been criticized as a "most unsatisfactory criterion, since (viability) is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development." (Prosser, Torts sec. 55, at 337 (4th ed. 1971). See Comment, Negligence and the Unborn Child: A Time for Change, 18 S.Dak.L.Rev. 204, 213-14 (1973); Smith v. Brennan (1960), 31 N.J. 353, 366, 157 A.2d 497, 504.) In addition to the length of pregnancy, viability depends on other facts which include the weight and race of the child and the available life-sustaining techniques. (See Comment, Negligence and the Unborn Child, 18 S.Dak.L.Rev. 204, 215-16 (1973).) Furthermore, it has been pointed out that denial of claims for injuries to the previable fetus may indeed cut off some of the most meritorious claims, for there is substantial medical authority that congenital structural defects caused by factors in the prenatal environment can be sustained only early in the previable stages. (Note, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries, 110 U.Pa.L.Rev. 554, 563 (1962).) Recently, those courts which have considered the question have rejected viability as the deciding factor. (Prosser, Torts sec. 55, at 337 (4th ed. 1971); Annot., 40 A.L.R.3d 1222, 1230 (1971).) Upon reconsideration, we henceforth reject viability as a criterion to a common law action for prenatal injuries. Thus the failure to allege that plaintiff was viable at the time she sustained her injuries does not bar this action. This conclusion, however, does not fully answer the ultimate question of whether a cause of action exists on behalf of a live born infant, although the infant's injuries resulted from a negligent act occurring...