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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

McKenna Law Update & News – March 2014

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In This Issue...

 

ON OUR 60TH ANNIVERSARY....

As we celebrate our firm’s 60th Anniversary, we at McKenna Storer extend our sincere gratitude to the many friends of the firm who have contributed to our success. Our long tradition as a stalwart in the Chicago legal community provides us today with a solid foundation from which we stride forward as a leading firm in Illinois and beyond. We owe our success to an unwavering commitment to providing highly responsive service to our valued clients. All of us at McKenna thank you for your support in the past and look forward to serving your needs in the future.Sara CookManaging Partner 

FIRST DISTRICT HOLDS THAT EXTRAORDINARY EXPENSES FOR RAISING A CHILD AFFLICTED WITH A GENETIC DISEASE COULD BE RECOVERABLE IN A WRONGFUL PREGNANCY CASE

In Williams v. Rosner, 2014 IL App (1st) 120378, plaintiffs filed a complaint for negligence and wrongful pregnancy against Rosner and Reproductive Health Associates seeking to recover the extraordinary expenses they would incur in raising their daughter born with sickle cell disease after an unsuccessful sterilization procedure. Defendants filed a motion to dismiss the wrongful pregnancy action arguing the claim failed as a matter of law because there was no authority permitting plaintiff parents who filed wrongful pregnancy actions in Illinois to recover the extraordinary expenses they incur in raising a child born with a genetic abnormality. The trial court denied defendants’ motion but certified the following question for appellate review:Whether a plaintiff in an action for wrongful pregnancy may recover the extraordinary expenses of raising a child afflicted with sickle cell disease when the defendant physician knew (1) that the plaintiff and her husband were carriers of the sickle-cell trait, and (2) that the plaintiffs had previously conceived a child with sickle-cell disease, and (3) that the plaintiffs desired sterilization to avoid giving birth to another child afflicted with sickle-cell disease.This type of lawsuit filed by plaintiffs is referred to as a "wrongful pregnancy" action which are claims brought by parents of a child who is born following a negligently performed sterilization procedure, seeking to recover compensation for a pregnancy they sought to avoid. Historically, these actions have been limited to general damages including costs associated with "the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages and loss of consortium." In 1983, the Illinois Supreme Court declined to expand the scope of damages permitted in wrongful pregnancy actions to include the costs of raising an unexpected, but otherwise healthy child. See Cockrum v. Baumgartner, 95 Ill.2d 193, 196, 447 N.E.2d 385 (1983).Later, the Illinois Supreme Court rejected a claim for extraordinary damages where a child diagnosed with ADHD was born following a negligently performed tubal ligation procedure when the doctor was aware the plaintiffs were parents to another child who was hyperactive and learning disabled. The Court found the allegations in plaintiffs’ complaint were insufficient to establish their medical provider proximately caused the injury because the plaintiffs’ injury could not be said to be of such a character that an ordinary prudent person should have foreseen it as a likely consequence of the alleged negligence. There were no allegations that the defendants’ acts or omissions caused the child’s condition, the defendants knew of the possibility that a child would suffer from a particular defect or the parents were seeking to avoid a specific risk. Williams v. University of Chicago Hospitals, 179 Ill.2d 80, 84, 688 N.E.2d 130 (1997).The First District found that the 1997 Williams decision did not create a per se ban on extraordinary damages available to wrongful pregnancy plaintiffs and that in this case, the plaintiffs had alleged the requisite link between Dr. Rosner’s negligence and the child’s condition. Specifically, the plaintiffs alleged they communicated to Dr. Rosner they had a special need to avoid conception of additional children as both parents were carriers of the sickle cell trait and were parents of a child born with sickle cell disease. Based on these allegations, the Court stated that one can conclude plaintiffs’ injury, the birth of a second child afflicted with sickle cell disease, was of such a character that an ordinarily prudent person should have foreseen it to be a likely consequence of a negligently performed tubal ligation procedure. Although Dr. Rosner did not actually cause the sickle cell disease, one can conclude that the birth and affliction was not only foreseeable but it would not have occurred "but for" the negligently performed tubal ligation procedure.The Court concluded that where the birth of a child with a genetic abnormality is a foreseeable consequence of a negligently performed sterilization procedure and where the parents’ desire to avoid contraception precisely for that reason has been communicated to the doctor performing the procedure, parents may assert a claim for the extraordinary costs they will incur in raising their child to the age of majority.At first blush, this case appears to open the floodgates to plaintiffs seeking extraordinary costs by anyone who has a child born with some condition, characteristic or trait that may be construed as anything other than healthy. This concern was raised by the defendants and rejected by the Court which emphasized that in order to seek extraordinary costs, plaintiffs must provide evidence a specific genetic abnormality was a foreseeable consequence of the defendant’s negligence, preventing claims for extraordinary damages for every unforeseeable slight genetic abnormality.The holding in this 2014 Williams decision is limited to a very specific situation which not only requires a negligently performed sterilization procedure resulting in the birth of a child with a specific genetic abnormality that was a foreseeable consequence of the defendant’s negligence, but also requires that the basis of the parents’ desire to have the sterilization procedure was to avoid having a child with that genetic abnormality. Further, the parents’ reasons for the procedure must have been communicated to the doctor performing the procedure.Since the limited issue presented on appeal in this case was whether the plaintiffs could state a legally recognized cause of action, the decision does not address whether the plaintiffs proved their cause of action, nor does it address exactly what damages they would receive as "extraordinary" damages if they did, in fact, prove their claim. Those issues will likely be addressed as the case moves forward.Some guidance as to the types of damages that could be awarded may be obtained in the context of "wrongful birth" actions where the plaintiffs claim they would not have conceived a child if the defendant had not been negligent in performing genetic testing, Those courts have allowed "extraordinary damages" which include the medical, institutional and educational expenses that are necessary to properly manage and treat the child’s genetic disorder, although some courts limit those damages to the period of the child’s minority.For further information, contact Kelly Purkey at 312.558.3906 or kpurkey@104.236.6.34. Return to Issues Menu 

TRIALS AND CASE DISPOSITIONS

Alex Sweis recently took a case of admitted liability to trial, without his client. Alex admitted liability and proximate cause to the jury and the case was tried only on the issue of damages. The plaintiff sustained a fracture in her right arm which required a hard cast and three months of chiropractic treatment and physical therapy. The plaintiff also complained of lower back pain and had three months of chiropractic treatment and physical therapy. The plaintiff’s medical bills totaled $19,486.00 which were admitted into evidence.The plaintiff’s attorney asked the jury for her $19,486.00 in medical bills, $150,000 for the plaintiff’s pain and suffering and $175,000 for the plaintiff’s loss of normal life. In taking responsibility for the plaintiff’s injury, Alex told the jury that he had no problem with the medical bills. However, the plaintiff’s demands for pain and suffering and loss of normal life were completely unreasonable and were not supported by the evidence. Alex gave the jury a reasonable verdict recommendation. The jury awarded the plaintiff only $14,000 more than Alex’s recommendation, which was over $250,000 less than the plaintiff’s demand.A motion by Dawn Ehrenberg to dismiss her client based upon the statute of limitations was recently granted. Dawn’s client was the first of several doctors and midwives to provide care to a pregnant woman who had a premature rupture of her membranes and lost her fetus several days later. The plaintiff claimed that the defendants had withheld certain crucial documents which would have alerted her to her potential cause of action and she did not discover them until a couple of years later. All of the defendants filed motions to dismiss on the basis that the lawsuit was not brought within the proper time limit.Dawn was able to show the judge that her client was not involved in the allegedly erroneous production of documents and that the plaintiff had all of the documents involving her client within the original statute of limitations period. The judge dismissed Dawn’s client but denied the motion as to the other defendants. Return to Issues Menu 

McKENNA NEWS

Congratulations to Greg Cochran, Sara Cook and Margaret Foster for being selected as Illinois Super Lawyers for 2014. Each of them has received this honor on multiple occasions. This honor is based on a multi-phase selection process including a statewide survey of lawyers, independent evaluation of candidates by the research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. Only five percent of lawyers in the state are named as Super Lawyers. Congratulations!.Additional congratulations to Greg for also being selected as an Illinois Leading Lawyer for 2014 in the areas of Toxic Tort Defense and Mass Tort Defense. He was also previously selected for this honor in 2012 and 2013. The list of Leading Lawyers is the result of thousands of contacts with Illinois lawyers asking them which of their peers they believe comprise the top lawyers. Only those lawyers who are most often recommended qualify as Leading Lawyers.McKenna Storer has been selected as a 2014 Top Ranked Law Firm in the United States. The firm will be included in FORTUNE® magazine’s 2014 listing of the top ranked law firms. McKenna Storer also received this honor in 2012 and 2013. Return to Issues Menu
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