Supreme Court Summaries

Opinions filed May 6, 2011



No. 108656     Clark v. Children’s Memorial Hospital


Appellate citation: 391 Ill. App. 3d 321.


JUSTICE GARMAN delivered the judgment of the court, with opinion.

            Chief Justice Kilbride and Justices Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

            Justice Freeman concurred in part and dissented in part, with opinion. 


This Cook County civil action for damages is at the pleading stage. No trial has occurred.


            The married couple who are the plaintiffs here alleged that Dr. Barbara Burton of The Children’s Memorial Hospital (both defendants here) had been negligent in not informing them of test results showing that their first son (who was born in 1997 and who was having problems) had a genetic defect. In 2001, the mother was informed by the doctor that all “known mechanisms” for the genetic defect which was feared “had been ruled out.” The couple chose to conceive again, and their second son was born in 2002. He had the same problems as his brother.


            The couple filed suit. Initially, the defense alleged that all the claims were barred by the statute of limitations and asked for summary judgment, which was denied because the circuit court found there were issues of fact. The complaint sought to recover the anticipated cost of caring for the child after he reached the age of majority, when it was expected that he would be unable to care for himself. It also sought damages for negligent infliction of emotional distress. The circuit court rejected both of plaintiffs’ claims and dismissed the case with prejudice. The plaintiffs appealed.


            In the appellate court, that reviewing body ruled that plaintiffs could recover under both theories and did not reach the limitations issue. In this decision, the supreme court accepted one of the plaintiffs’ theories–recovery for damages for emotional distress–but not the theory that expenses could be paid beyond the age of majority.


            The supreme court said that the liability claim for expenses beyond the age of majority should be rejected because the legal liability of the parents terminates at this time, even though the expenses themselves will continue and may eventually be borne by the taxpayers. The supreme court reversed the appellate court on this issue.


            The parents had also sought damages based on their emotional distress. In a 1983 case, the supreme court had announced a “zone of danger” rule for claims of negligent infliction of emotional distress. That earlier decision, the supreme court held here, cannot appropriately be applied here. The court described this lawsuit as an action for “wrongful birth,” in which the wrong which was done to the parents is that they were deprived of an opportunity to make an informed decision. The parents do not assert a freestanding emotional distress claim, but merely assert emotional distress as an element of damages for a personal tort–the wrong already done to them. In allowing this claim to proceed, the appellate court was affirmed.


            The cause was remanded to the circuit court for further proceedings, as to which the plaintiffs should be permitted to amend their pleadings concerning emotional distress. The circuit court’s finding that there were issues of fact precluding summary judgment on the limitations question was upheld.