                                  Illinois Official Reports

                                          Appellate Court




                             Williams v. Rosner, 2014 IL App (1st) 120378




Appellate Court              CYNTHIA WILLIAMS and KENNETH WILLIAMS, Individually,
Caption                      and as Parents and Next Friends of Kennadi Williams, a Minor,
                             Plaintiffs-Appellees, v. BYRON ROSNER, M.D., and REPRO-
                             DUCTIVE HEALTH ASSOCIATES, S.C., a For-Profit Corporation,
                             Defendants-Appellants.


District & No.               First District, Third Division
                             Docket No. 1-12-0378


Filed                        February 26, 2014
Rehearing denied             April 10, 2014


Held                         Pursuant to a question certified nunc pro tunc for interlocutory review
(Note: This syllabus         pursuant to Supreme Court Rule 308, the appellate court responded
constitutes no part of the   that plaintiffs in a wrongful pregnancy action may recover for the
opinion of the court but     extraordinary expenses involved in raising a child afflicted with sickle
has been prepared by the     cell disease when defendant physician knew plaintiff and her husband
Reporter of Decisions        were carriers of the sickle cell trait, that plaintiffs had previously
for the convenience of       conceived a child with sickle cell disease and that plaintiffs desired
the reader.)                 sterilization to avoid giving birth to another child afflicted with sickle
                             cell disease.



Decision Under               Appeal from the Circuit Court of Cook County, No. 10-L-12558; the
Review                       Hon. John P. Kirby, Judge, presiding.



Judgment                     Certified question answered in the affirmative.
     Counsel on               Donohue, Brown, Mathewson & Smyth, LLC, of Chicago (Richard H.
     Appeal                   Donohue, Karen Kies DeGrand, and Todd J. Stalmack, of counsel),
                              for appellants.



                              Cochran, Cherry, Givens, Smith & Montgomery, LLC, of Chicago
                              (James D. Montgomery and Beverly P. Spearman, of counsel), for
                              appellees.



                              Patrick E. Dwyer III, of Dwyer, McCarthy & Associates, of Chicago,
                              for amicus curiae Illinois Trial Lawyer’s Association.




     Panel                    JUSTICE PUCINSKI delivered the judgment of the court, with
                              opinion.
                              Justices Neville and Mason concurred in the judgment and opinion.




                                               OPINION

¶1         Plaintiffs Cynthia Williams and Kenneth Williams, individually, and as parents and next
       friends of Kennadi Williams, a minor, filed a complaint advancing claims of negligence and
       wrongful pregnancy against defendants Byron Rosner, M.D., and Reproductive Health
       Associates (Reproductive Health). Among the damages that plaintiffs sought to recover were
       the extraordinary expenses that they would incur in raising their daughter, who was born with
       sickle cell disease following an unsuccessful sterilization procedure. Defendants filed a motion
       to dismiss the wrongful pregnancy action filed by plaintiffs, arguing their claim failed as a
       matter of law because there was no authority permitting plaintiff parents who file wrongful
       pregnancy actions in Illinois to recover the extraordinary expenses they would incur in raising
       a child who is born with a genetic abnormality. The circuit court denied defendants’ motion to
       dismiss; however, it recognized that the case involved an issue of law as to which there were
       substantial grounds for differing opinions and certified a question for appellate review. For the
       reasons explained herein, we answer the certified question in the affirmative.




¶2                                         I. BACKGROUND
                                                 -2-
¶3        Cynthia and Kenneth Williams are both carriers of the sickle cell trait, 1 and their first
     child, a son, was born with sickle cell disease. 2 In January 2001, after the birth of the couple’s
     son, Cynthia began receiving obstetrics and gynecology services from various physicians,
     including Doctor Rosner, who were employed by Reproductive Health, and practiced various
     birth control options prescribed by the doctors. On November 28, 2005, Cynthia elected to
     undergo a tubal ligation in an effort to achieve permanent sterility. The procedure was
     subsequently canceled, however, when complications arose with respect to the anesthesia.
¶4        Thereafter, on December 8, 2008, Cynthia had another consultation with Doctor Rosner to
     further discuss birth control options. At the conclusion of the consultation, Cynthia elected to
     undergo a mini-laparotomy3 and tubal ligation procedure, to be performed by Doctor Rosner.
     Cynthia underwent the procedure on December 30, 2008. Unbeknownst to her, Doctor Rosner
     left one of her fallopian tubes and one of her ovaries intact. 4
¶5        Subsequently, on June 24, 2009, Cynthia learned that she was pregnant. Cynthia gave birth
     to a daughter, Kennadi, on February 1, 2010, via cesarian section. At this time, Cynthia learned
     that her left fallopian tube and ovary had not been removed during the December 2008
     procedure. Kennadi was subsequently diagnosed with sickle cell disease.

¶6                                              Complaint
¶7       Following Kennadi’s birth and diagnosis, the Williamses filed a complaint against Doctor
     Rosner and Reproductive Health advancing claims of medical negligence and wrongful
     pregnancy. The complaint was amended twice. In the second amended complaint, the
     complaint at issue here, plaintiffs alleged that Cynthia had a consultation with Doctor Rosner,
     during which she communicated the following relevant information: that she and her husband
     were carriers of the sickle cell trait; that they had a son afflicted with sickle cell disease; and
     that they desired permanent sterility to avoid conceiving another child with sickle cell disease.

         1
          People with one sickle cell gene and one normal gene have the sickle cell trait. Carriers of the
     sickle cell trait do not suffer from, or display, any symptoms of sickle cell disease, but can nonetheless
     pass the trait onto their children. Centers for Disease Control and Prevention, http://www.cdc.gov/
     ncbddd/sicklecell/traits.html (last visited Feb. 11, 2014).

         2
           If both parents are carriers of the sickle cell trait, there is a 25% chance that the child they conceive
     will be born with sickle cell disease and a 50% chance that the child will also be a carrier of the sickle
     cell trait. Centers for Disease Control and Prevention, http://www.cdc.gov/ncbddd/sicklecell/traits.html
     (last visited Feb. 11, 2014).

         3
          A mini-laparotomy is one of most common methods of tubal ligation. During the procedure, a
     small incision is made at or above the woman’s pubic hairline. The fallopian tubes are then pulled
     through the incision, closed off and then put back into place. http://www.contraception.about.com/
     od/tuballigation/g/Mini-Laparotomy.htm (last visited Feb. 11, 2014).

         4
          The complaint does not detail why Cynthia expected her ovaries to be removed during the ligation
     procedure. Based on the pleadings, it does not appear that Cynthia sought an oophorectomy to remove
     both ovaries in addition to a tubal ligation.
                                                       -3-
Doctor Rosner scheduled a bilateral tubal ligation procedure following their discussion.
Thereafter, plaintiffs made the following allegations with respect to their wrongful pregnancy
claim:
           “36. In providing medical care to CYNTHIA WILLIAMS, Defendants BYRON
       ROSNER, M.D., and REPRODUCTIVE HEALTH ASSOCIATES, S.C., had a duty to
       possess and apply the knowledge and use the skill and care which a reasonably
       well-qualified physician would use in cases like that of CYNTHIA WILLIAMS.
           37. Defendants, BYRON ROSNER, M.D., and REPRODUCTIVE HEALTH
       ASSOCIATES, S.C., breached that duty and were negligent in the care and treatment
       of Plaintiff CYNTHIA WILLIAMS in one or more of the following respects:
               (a) Failed to review Cynthia Williams’ prior medical records including, but not
           limited to, her previous operative notes.
               (b) Failed to perform an ultrasound or other tests to determine and evaluate
           Cynthia Williams’ reproductive organs prior to surgery.
               (c) Failed to perform an adequate or appropriate tubal ligation on Cynthia
           Williams on December 30, 2008.
           38. That as a direct and proximate result of one or more of the foregoing wrongful
       acts and/or omissions Defendants BYRON ROSNER, MD and REPRODUCTIVE
       HEALTH ASSOCIATES, S.C., proximately caused injury to plaintiffs CYNTHIA
       WILLIAMS and KENNETH WILLIAMS in that CYNTHIA WILLIAMS had an
       unplanned pregnancy and undesired fertility and gave birth to a child afflicted with
       Sickle Cell Disease, KENNADI WILLIAMS.
           39. The birth of a child with Sickle Cell Disease–to wit, KENNADI
       WILLIAMS–was a foreseeable consequence of the negligence of Defendants BYRON
       ROSNER, M.D., and REPRODUCTIVE HEALTH ASSOCIATES, S.C., because
       Defendants BYRON ROSNER, M.D., had actual knowledge that Plaintiffs CYNTHIA
       WILLIAMS and KENNETH WILLIAMS were carriers of the Sickle Cell Trait, and
       that the birth of a child afflicted with Sickle Cell Disease would be a likely
       consequence of a failed tubal ligation.
           40. That as a direct and proximate result of one of more of the foregoing wrongful
       acts and/or omissions of Defendants, BYRON ROSNER, M.D., and
       REPRODUCTIVE HEALTH ASSOCIATES, S.C., Plaintiffs CYNTHIA WILLIAMS
       and KENNETH WILLIAMS have become obligated for large sums of money for
       medical treatment for KENNADI WILLIAMS and will become obligated for large
       sums of money for further medical treatment as a result of CYNTHIA WILLIAMS’
       pregnancy, and the extraordinary expenses they will incur in raising KENNADI
       WILLIAMS to the age of majority.
                                           ***
           WHEREFORE Plaintiffs CYNTHIA WILLIAMS and KENNETH WILLIAMS,
       individually, and as parents and next friends of KENNADI WILLIAMS, a minor,
       demand judgment against Defendants BYRON ROSNER, MD, and
       REPRODUCTIVE HEALTH ASSOCIATES, S.C., in the amount of money necessary
       to fully and thoroughly compensate CYNTHIA WILLIAMS for personal injury to her,
       emotional distress, and for lost wages, that far exceeds the jurisdictional minimum or
                                            -4-
              this Court, and for the extraordinary expenses that Plaintiffs CYNTHIA WILLIAMS
              and KENNETH WILLIAMS will incur in raising KENNADI WILLIAMS to the age of
              majority.” (Emphasis added.)

¶8                                             Motion to Dismiss
¶9         Defendants responded with a motion to dismiss. In the motion, defendants urged the court
       to dismiss, with prejudice, plaintiffs’ claim for wrongful pregnancy, or in the alternative, to
       “certify issues related to count I for interlocutory appeal pursuant to Supreme Court Rule 308.”
       In support of their motion to dismiss the wrongful pregnancy count, defendants observed that
       there was no Illinois authority expressly permitting parents who file wrongful pregnancy
       actions to recover extraordinary expenses associated with raising a child born with a genetic
       defect or abnormality following an unsuccessful sterilization procedure. Instead, defendants
       maintained that, based on current prevailing legal authority, “wrongful pregnancy plaintiffs
       who allege a cause of action based on an unsuccessful sterilization procedure, generally are
       limited to recovering damages for the cost of the unsuccessful operation, pain and suffering,
       any medical complications caused by the pregnancy, the cost of the child’s delivery, lost
       wages, and loss of consortium.” Defendants further argued that plaintiffs were not entitled to
       recovery because they could not satisfy the element of proximate cause. Although a
       negligently performed sterilization procedure was undeniably the cause of Cynthia’s
       pregnancy, defendants argued that it was not the cause of Kennadi’s genetic defect.
       Accordingly, defendants maintained that plaintiffs’ wrongful pregnancy claim failed as a
       matter of law.

¶ 10                                       Circuit Court Ruling
¶ 11      In a written order, the circuit court denied defendants’ motion to dismiss, finding:
                  “After the unsuccessful operation, Plaintiff, Cynthia Williams, conceived and gave
              birth to a child afflicted with sickle-cell disease. Plaintiffs allege that Defendant, Dr.
              Rosner, knew that Plaintiffs were carriers of the sickle-cell trait, were already raising
              one child with sickle-cell disease, and desired sterilization to avoid conceiving another
              child with the affliction. Count I seeks recovery, inter alia of the extraordinary
              expenses of raising a child with sickle-cell disease.
                                                   ***
                  Illinois courts have yet to determine whether plaintiffs in a wrongful pregnancy
              action may recover the extraordinary expenses associated with raising a child afflicted
              with a congenital disease where the child’s disease was reasonably foreseeable by the
              defendant physician who negligently performed the sterilization procedure. Absent
              authority barring Plaintiffs’ prayer to recover extraordinary expenses, the court must
              resolve this motion in the light most favorable to Plaintiffs.”

¶ 12                                     Certified Question
¶ 13      After denying defendants’ motion to dismiss, the court subsequently entered a
       supplemental order nunc pro tunc and certified the following question for interlocutory review
       pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)):
                                                  -5-
                “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.”
¶ 14        The court expressly found that the matter contained in the certified question “involve[d] a
       question of law as to which there is a substantial ground for a difference of opinion and, that an
       immediate appeal from the Order [would] materially advance the ultimate termination of the
       litigation.”
¶ 15        This court allowed defendants’ petition for interlocutory appeal and accepted the certified
       question for review.

¶ 16                                           II. ANALYSIS
¶ 17       On appeal, defendants argue that there is no authority in Illinois allowing plaintiff parents
       who file wrongful pregnancy actions to recover extraordinary damages. Specifically,
       defendants contend that neither the current body of Illinois case law pertaining to birth-related
       torts nor the traditional proximate cause framework allows expansion of the scope of damages
       in wrongful pregnancy actions to include such damages.
¶ 18       Plaintiffs, in turn, urge this court to reject defendants’ invitation to impose an artificial
       limit on the damages available in wrongful pregnancy actions. They argue that “where, as here,
       the foreseeable consequences of the defendant’s negligence is the birth of a child with a serious
       hereditary disease, and where that consequence in fact results, the defendant should be held
       liable for the extraordinary medical expenses that the parents will incur in raising the child to
       the age of majority because those damages proximately flow from the defendant’s
       negligence.” 5
¶ 19       When reviewing a certified question pursuant to Supreme Court Rule 308, an appellate
       court is generally limited to answering the question certified by the trial court and will not
       determine the propriety of the underlying order. Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d
       45, 57-58 (2007); Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 21. A
       question certified by a trial court pursuant to Rule 308 is subject to de novo review. Johnston v.
       Weil, 241 Ill. 2d 169, 176 (2011); United Airlines, Inc. v. City of Chicago, 2011 IL App (1st)
       102299, ¶ 5. Given the procedural posture of this case, we note that the question presented for
       review is not whether the plaintiffs should, or would, prevail in this litigation; rather, the issue
       before this court is simply whether their complaint states a legally cognizable cause of action.
       Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 234 (1987). Accordingly, to resolve


           5
             We note that this court granted leave to the Illinois Trial Lawyer’s Association (the Association) to
       file a brief amicus curiae in support of plaintiffs in accordance with Illinois Supreme Court Rule 345.
       Ill. S. Ct. R. 345 (eff. Sept. 20, 2012). The arguments contained in the Association’s amicus curiae brief
       are substantially the same as the arguments contained in the Williamses’ brief. In addition, the
       Association relies heavily on public policy principles to advocate the expansion of the scope of
       damages in wrongful pregnancy actions to include extraordinary damages.
                                                       -6-
       this question we must accept as true all of the well-pleaded facts contained in plaintiffs’
       complaint without expressing any opinion as to defendants’ liability. Id.
¶ 20       We begin our analysis by providing a brief overview of the three different birth-related
       medical negligence tort claims recognized in Illinois. “Wrongful birth” actions are suits
       brought by parents who allege that they would not have conceived a child or carried their child
       to term but for the negligence of the doctor who administered neonatal testing or genetic
       testing and failed to counsel them of the likelihood of giving birth to a physically or mentally
       impaired child. Williams v. University of Chicago Hospitals, 179 Ill. 2d 80, 84-85 (1997);
       Siemieniec, 117 Ill. 2d at 235. The premise underlying wrongful birth actions is that “prudent
       medical care would have detected the risk of a congenital or hereditary genetic disorder either
       prior to conception or during pregnancy” and that “[a]s a proximate result of this negligently
       performed or omitted genetic counseling or prenatal testing, the parents were foreclosed from
       making an informed decision whether to conceive a potentially handicapped child or, in the
       event of a pregnancy, to terminate the same.” Siemieniec, 117 Ill. 2d at 235.
¶ 21       Plaintiffs who succeed in wrongful birth claims are entitled to recover extraordinary
       damages, including the medical, institutional and educational expenses that are necessary to
       properly manage and treat their child’s congenital or genetic disorder. See, e.g., Siemieniec,
       117 Ill. 2d at 260 (finding that the parents of a hemophiliac child who had filed a wrongful
       birth claim against doctors who had provided prenatal genetic counseling and misinformed the
       prospective mother that she had a “very low” risk being a genetic carrier of hemophilia, had a
       cause of action for extraordinary expenses that they would incur in caring for their hemophiliac
       child during his minority); see also Clark v. Children’s Memorial Hospital, 2011 IL 108656,
       ¶ 74 (holding that plaintiff parents who filed a wrongful birth claim were eligible to recover the
       extraordinary damages they would incur in caring for their son who was born with Angelman
       Syndrome during his minority, but were precluded from recovering postmajority extraordinary
       expenses).
¶ 22       “Wrongful life” claims, in turn, are corresponding actions brought by a parent or guardian
       on behalf of a minor child who suffers from a genetic or congenital disorder. Goldberg v.
       Ruskin, 113 Ill. 2d 482, 484-85 (1986); Siemieniec, 117 Ill. 2d at 236. The basis for such claims
       is that the defendant medical provider either failed to accurately perform genetic screening
       tests and inform the child’s parents about the hereditary nature of certain disorders, failed to
       accurately advise the child’s parents about the genetic risks associated with childbirth, or failed
       to perform a surgical procedure intended to prevent the birth of a genetically disordered child.
       Siemieniec, 117 Ill. 2d at 236. “In a wrongful life case, the child does not assert that the
       negligence of the defendants caused his inherited or congenital abnormality, that the
       defendants could have done anything that would have decreased the possibility that he would
       be born with such defects, or that he ever had a chance to be normal. The essence of the child’s
       claim is that the medical professional’s breach of the applicable standard of care precluded an
       informed parental decision to avoid his conception or birth. But for this negligence, the child
       allegedly would not have been born to experience the pain and suffering attributable to his
       affliction.” Id.
¶ 23       Courts in this state have repeatedly rejected wrongful life actions on public policy grounds.
       See Siemieniec, 117 Ill. 2d at 239-40 (“Resting on the belief that human life, no matter how
       burdened, is, as a matter of law, always preferable to nonlife, the courts have been reluctant to
                                                    -7-
       find that the infant has suffered a legally cognizable injury by being born with a congenital or
       genetic impairment as opposed to not being born at all.”). Given the public policy favoring life
       over nonlife, as well as the inherent difficulties associated with calculating damages in
       wrongful life actions, plaintiffs who have filed such actions have been precluded from
       recovering both general and extraordinary damages. See, e.g., Goldberg, 113 Ill. 2d at 490
       (finding that a child born with Tay Sachs disease could not recover general damages for the
       pain and suffering associated with his genetic disease, as there was “no rational way to
       measure non-existence or to compare non-existence with the pain and suffering of the child’s
       impaired existence” (internal quotation marks omitted)); see also Siemieniec, 117 Ill. 2d at 251
       (rejecting a hemophiliac child’s wrongful life claim, in which he sought to recover
       extraordinary expenses, because “the public policy of this State to protect and to preserve the
       sanctity of all human life *** militates against the judgment that an individual life is so
       wretched that one would have been better off not to exist”).
¶ 24       Finally, “wrongful pregnancy” or “wrongful conception” claims, the cause of action at
       issue in the instant appeal, are claims brought by parents of a child who is born following a
       negligently performed sterilization procedure. Williams, 179 Ill. 2d at 84. Parents who file such
       actions seek to recover compensation for a pregnancy that they had sought to avoid. Id.
¶ 25       Historically, plaintiffs in wrongful pregnancy 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.” Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983). For
       example, in Cockrum, our 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, who was born following a negligently performed sterilization procedure. In
       doing so, the court expressed an “unwillingness to hold that the birth of a normal healthy child
       can be judged to be an injury to the parents” because such a notion “offends fundamental
       values attached to human life.” Id. at 198. The court thus limited the plaintiffs’ recovery to
       general damages.
¶ 26       Following its decision in Cockrum, the court was again called upon to address the
       permissible scope of damages in wrongful pregnancy actions in Williams v. University of
       Chicago Hospitals, 179 Ill. 2d 80, 84 (1997). In Williams, the plaintiffs were parents of a child
       diagnosed with attention deficit hyperactivity disorder (ADHD), who was born following a
       negligently performed tubal ligation procedure. In the complaint that the parents filed against
       the defendant doctor, the plaintiffs alleged that the doctor was aware that they were already the
       parents of another child who was hyperactive and learning disabled. The parents sought to
       recover general damages as well as the extraordinary expenses that they would incur in raising
       their special needs child to the age of majority, including expenses for psychological treatment
       and special education.
¶ 27       The supreme court, however, relying on “familiar principles of tort law, as well as
       considerations of public policy,” rejected the plaintiffs’ claim for extraordinary damages.
       Williams, 179 Ill. 2d at 86. Observing that plaintiffs in wrongful pregnancy actions must satisfy
       the elements of duty, breach and proximate cause to be entitled to damages, the court
       concluded that the allegations contained in the plaintiffs’ complaint were insufficient to
       establish that their medical care provider proximately caused their injury, stating:
                                                   -8-
               “There are no allegations in the present case that the defendants caused the child’s
               condition or misled the parents about the likelihood that a child born to them would be
               defective. Indeed, the plaintiffs acknowledge in their briefs before this court that they
               do not contend that the defendants caused their son’s condition or that the defendants
               could have detected the condition before the child was born. Nor do the plaintiffs allege
               that the defendants knew that Mrs. Williams sought sterilization as a means of avoiding
               the conception of a child with the particular defect involved here. Without determining
               in this case whether such an allegation would be sufficient to sustain recovery under a
               wrongful-pregnancy theory, we do not believe that proximate cause can be established
               in the absence of allegations forging a closer link between the defendants’ negligence
               and the eventual birth of the defective child.” Williams, 179 Ill. 2d at 87.
¶ 28       Emphasizing that a key element of proximate cause is foreseeability, the court explicitly
       rejected the plaintiffs’ argument that the doctor’s knowledge that their first child suffered from
       the same affliction was enough, in itself, to make the birth of another child with ADHD a
       foreseeable consequence of medical negligence. The court reasoned:
               “[U]nder the allegations in this case the plaintiffs’ injury cannot be said to be of such a
               character that an ordinarily prudent person should have foreseen it as a likely
               consequence of the alleged negligence. The plaintiffs do not allege that any act or
               omission by the defendants caused the child’s condition, that the defendants knew of
               the possibility that a child conceived in the wake of a failed operation would suffer
               from a particular defect, or even that the parents were seeking to avoid a specific risk
               and that the defendants were aware of that, assuming that allegations of that nature
               would be a sufficient basis for liability.” Williams, 179 Ill. 2d at 87-88.
¶ 29       Accordingly, given that the birth of the plaintiffs’ ADHD-afflicted child was an
       unforeseeable consequence of the defendants’ negligence, the court concluded that the parents
       were not entitled to recover the extraordinary expenses that they would incur in raising their
       child to the age of majority. Williams, 179 Ill. 2d at 89-90.
¶ 30       Both parties rely on Williams in support of their respective arguments. Defendants argue
       that plaintiffs in this case, just like the parents in Williams, cannot satisfy the requisite element
       of proximate cause that is necessary to justify expanding the scope of recoverable damages in
       wrongful pregnancy actions to include extraordinary expenses. Specifically, defendants
       contend that Dr. Rosner’s knowledge that plaintiffs already had a child diagnosed with sickle
       cell disease did not make it reasonably foreseeable that a negligently performed tubal ligation
       procedure would result in the birth of another child with the same congenital disorder.
¶ 31       Plaintiffs, in turn, maintain that Williams merely “stands for the uncontroversial
       proposition that a plaintiff in a negligence action may only recover those damages which are
       foreseeable as a likely consequence of the defendant’s negligence.” Thus, where the pleadings
       establish that the birth of a diseased child is a foreseeable consequence of a negligently
       performed sterilization procedure, then wrongful pregnancy plaintiffs should be able to obtain
       an award of extraordinary damages. We agree with plaintiffs.
¶ 32       In Williams, the court did not create a per se ban on extraordinary damages available to
       wrongful pregnancy plaintiffs. Rather, the Williams decision was decided on the narrow
       grounds of proximate cause and the deficiencies of the allegations contained in that complaint.
       Notably, the court specifically declined to resolve the question at issue in the instant case:
                                                       -9-
       whether parents “with a particular need to avoid conception of a child, and who communicate
       that need to the defendant who performs the sterilization procedure, may recover as damages
       the extraordinary expenses of raising a child born in the wake of an unsuccessful and
       negligently performed operation.” Williams, 179 Ill. 2d at 89. Unlike the parents in Williams,
       plaintiffs here have set forth allegations that if, taken as true, establish the requisite link
       between Dr. Rosner’s negligence and Kennadi’s condition. Specifically, plaintiffs alleged that
       they had a special need to avoid conception of additional children, as both were carriers of the
       sickle cell trait and were parents of a son born with sickle cell disease, and that they
       communicated their need to avoid conception of additional children with the same affliction to
       Dr. Rosner. As the court explained in Williams, to justify a finding that a defendant
       proximately caused a plaintiff’s injury: “ ‘The injury must be the natural and probable result of
       the negligent act or omission and be of such a character as an ordinarily prudent person ought
       to have foreseen as likely to occur as a result of the negligence, although it is not essential that
       the person charged with negligence should have foreseen the precise injury which resulted
       from his act.’ ” Williams, 179 Ill. 2d at 87 (quoting Neering v. Illinois Central R.R. Co., 383 Ill.
       366, 380 (1943)). Here, based on the allegations in plaintiffs’ complaint, one can conclude that
       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.
¶ 33       Defendants, however, argue that even if the allegations contained in plaintiffs’ complaint
       are true and the birth of a child with sickle cell disease was a foreseeable consequence, the
       element of proximate cause is still not satisfied because Dr. Rosner’s negligence in performing
       the tubal ligation did not actually cause Kennadi to develop sickle cell disease as her condition
       was determined at conception; rather, his actions merely created a condition under which a
       child with sickle cell disease could be born. Defendants’ argument, however, is based upon a
       misunderstanding and oversimplification of the element of proximate cause.
¶ 34       Proximate cause encompasses both “cause in fact” and “legal cause.” Nolan v.
       Weil-McLain, 233 Ill. 2d 416, 431 (2009). “Legal cause” encompasses the aforementioned
       issue of foreseeability. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 456 (1992). Actual
       cause or “cause in fact,” however, is satisfied only if there is evidence that the plaintiff’s injury
       could not have occurred “but for” the defendant’s conduct or if it can be determined that the
       defendant’s conduct was a “substantial factor” or material element in creating the injury. Id. at
       455-56. Here, although Dr. Rosner did not actually cause Kennadi’s sickle cell disease, one
       can conclude that her birth and affliction was not only foreseeable, but that it would not have
       occurred “but for” the negligently performed tubal ligation procedure. Accordingly, we reject
       defendants’ argument that plaintiffs’ wrongful pregnancy claim fails on proximate cause
       grounds.
¶ 35       We are also unpersuaded by defendants’ argument that the expansion of damages in this
       case would prove problematic from a public policy standpoint. Although defendants are
       correct that “virtually everyone is born with some condition, characteristic, or trait that might
       be construed as rendering the person other than healthy and normal” (Williams, 179 Ill. 2d at
       90), we disagree that expanding the scope of damages in wrongful pregnancy cases would
       open the proverbial floodgates to allow the parents of every child born following an
       unsuccessful sterilization procedure to recover extraordinary expenses for any perceived
                                                    - 10 -
       genetic abnormality, no matter how slight, possessed by their child. Continuing to adhere to the
       traditional proximate cause framework utilized by courts and requiring plaintiffs to provide
       evidence that a specific genetic abnormality was a foreseeable consequence of the defendant’s
       negligence will preclude claims for extraordinary damages for every unforeseeable slight
       genetic abnormality. Moreover, this approach will better fulfill the fundamental purposes of
       tort law, which are to hold wrongdoers liable for injuries that are proximately caused by their
       actions and to provide just compensation to the injured parties. Clark, 2011 IL 108656, ¶ 29;
       Siemieniec, 117 Ill. 2d at 259.
¶ 36       Accordingly, for the aforementioned reasons, we decline to impose a rigid arbitrary
       limitation on damages available to wrongful pregnancy plaintiffs. Rather, we conclude that
       where as here, 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 that they will incur in raising
       their child to the age of majority. We emphasize that our disposition is limited to propriety of
       extraordinary damages in this case and we render no opinion regarding the other types of
       damages sought by plaintiffs in their complaint.

¶ 37                                       III. CONCLUSION

¶ 38      Certified question answered in the affirmative.




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