dissenting:
In affirming summary judgment for Dr. Ong, the majority holds that the plaintiff guardians have not demonstrated that “different medical care should have been given to relieve suffering or to prevent some irreparable harm during the undetected period.” 311 Ill. App. 3d at 208. The basis of plaintiffs’ complaint is that no medical care was given to Pam — not even that specifically required by Illinois statutes and federal and state health regulations applicable to the care owed to Pam.
It is undisputed that Pam was completely dependent upon the nursing home staff for assistance in every aspect of daily life. It is also undisputed that Pam was sexually assaulted and impregnated while in the care of the nursing home or in the care of persons to whom the nursing home entrusted Pam. This pregnancy was not discovered by the staff of the nursing home until Pam was in the nineteenth to twentieth week of pregnancy. The pregnancy was not discovered earlier because Dr. Ong and the nursing home staff failed to check Pam’s menses even though they were required to do so by state and federal regulations and the nursing home’s own policy.
The third-amended complaint was supported by an affidavit from Dr. Fox in which he averred that, due to the failure to diagnose this high risk pregnancy, Pam experienced nutritional changes, frequent infections, bowel distress, and the trauma of the delivery process.
In her motion for summary judgment, Dr. Ong argued that because plaintiffs failed to show that Pam’s guardian would have terminated the pregnancy if he had been told of it earlier, the plaintiffs failed to establish that Ong’s negligence caused Pam’s injuries. The majority adopts this argument in holding “[t]he fact that David and Debra have not asserted that different action would have been undertaken to end the pregnancy if the pregnancy had been detected sooner leaves a gap in the proof as to proximate cause.” 311 Ill. App. 3d at 211.
This court has rejected this argument in a wrongful pregnancy case. In Williams v. University of Chicago Hospitals, 281 Ill. App. 3d 1057 (1996), this court answered a certified question in the negative, holding that a treating physician and hospital that had negligently failed to sterilize a mother could not be held liable for the special expenses associated with raising a child who was born suffering from attention deficit hyperactivity disorder, a genetic or congenital disorder. The court found that the “injury,” the birth of an unhealthy child, was not one that an ordinarily prudent person ought to have foreseen as likely to occur as a result of the hospital’s negligence. Williams, 281 Ill. App. 3d at 1065.
In so holding, the court further said:
“We wish to make it clear that we reach our decision on the basis of the law of causation and not on the argument of the defendants, accepted by some courts, that liability should be excused in the cases of wrongful pregnancy because the woman had the ability to terminate the pregnancy. We agree with the plaintiffs’ argument that this is an improper justification for denying liability. There are, we are certain, many women who would undergo procedures to prevent pregnancy but who would not be willing to undergo any procedure which would terminate it. See Cockrum, 95 Ill. 2d at 207 (Clark, J., dissenting).” Williams, 281 Ill. App. 3d at 1066.
I likewise do not believe that plaintiffs need assert that they would have terminated the pregnancy to avoid summary judgment.
However, even if the majority were correct in requiring plaintiffs to assert that the guardian would have sought an abortion for Pam had timely notice been given, this case is still not appropriate for disposition by summary judgment. The issue of timing is of paramount importance in this case. Due to the failure to monitor Pam’s menses, her pregnancy was not detected until the nineteenth or twentieth week. At the time the pregnancy was discovered, Pam’s guardian was her father, Ted. The plaintiffs conceded that, due to a medical condition, Ted would not testify at any trial of this cause. David and Debra became guardians of Pam after the pregnancy was discovered. The purpose behind the state and federal regulations requiring that the menses of patients such as Pam be monitored relates to the importance of timely notice — to guardians as well as to medical personnel.
The majority assert that the record does not contain medical expert testimony as to Dr. Ong’s duty to advise the family at the time of the discovery of the pregnancy as to its attendant risks or that abortion was an option at that time. In his deposition, plaintiffs’ expert, Dr. Fox, testified that Pam’s family was deprived of an opportunity to make a decision about what to do because of Dr. Ong’s failure to diagnose the pregnancy in a timely manner. David’s affidavit in opposition to defendant’s motion for summary judgment also made clear that Dr. Ong never discussed with the family the risks the pregnancy posed to Pam, the injuries likely to be suffered by Pam if she carried the baby to term, or that abortion was a treatment available even at the time the pregnancy was discovered in the nineteenth or twentieth week.
In David’s deposition, he was asked why he never had any discussions concerning the possibility of Pam having an abortion. His response was, “It’s something that we just wouldn’t think of, I guess.” This does not indicate to me that David and Debra were unalterably opposed to seeking an abortion for Pam. Rather, it is consistent with David’s assertion that Dr. Ong failed to discuss the possibility of an abortion with the family. Further, the note in Pam’s medical chart— “[fjurther, it was felt by the obstetrical consultants that a therapeutic abortion was not an acceptable alternative at this time” — is also consistent with plaintiffs’ assertions that they were not consulted or advised by Dr. Ong as to what the alternatives were. At the very least, these are genuine issues of material fact, requiring the summary judgment to be overturned. Meck v. Paramedic Services, 296 Ill. App. 3d 720, 725 (1998).
The fact that Dr. Ong failed to discover the existence of the pregnancy and then failed to discuss alternatives available should not be excused due to Pam’s father’s inability to testify. Had Dr. Ong and the nursing home staff performed their statutory duties, the pregnancy would have been discovered within a few weeks, rather than 19 or 20 weeks. This would have given Pam’s family time to change guardians, to discuss what was best for Pam, her unborn child, and the rest of the family.
In Illinois, violation of an applicable statute or ordinance is prima facie evidence of negligence. Carey v. J.R. Lazzara, Inc., 277 Ill. App. 3d 902, 908 (1996). In deciding whether a complaint states a cause of action based on the negligent violation of a statute or an ordinance, courts generally inquire whether the legislation in issue was designed to protect human life or property and, if so, whether the plaintiff is a member of the class to be protected, and whether the injury is of the type that the statute was intended to protect against. If these three factors are present, the plaintiff may recover upon establishing that the defendant’s violation of the ordinance or statute proximately caused plaintiff’s injury. Calloway v. Kinkelaar, 168 Ill. 2d 312, 319 (1995).
Here, the state and federal regulations allegedly violated were clearly designed to protect human life, Pam was a member of the protected class, and the injuries Pam suffered were of the type that the regulations were intended to protect against. As to the issue of proximate cause, I believe that the complaint in the present case is analogous to one alleging wrongful birth.
As summed up by a federal court applying Illinois law: “[t]he nature of the tort of wrongful birth therefore, has nothing to do with whether or not a defendant caused the injury, but rather, whether defendant’s negligence was the proximate cause of the parents being deprived of the option of making an informed and meaningful decision to either abort the fetus or give birth to a potentially genetically defective child.” Coley v. Commonwealth Edison Co., 703 F. Supp. 748, 748-49 (N.D. Ill. 1989), citing Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 253 (1987).
In recognizing wrongful birth as a cause of action in Illinois, our supreme court expressed concern that refusing to do so would frustrate the fundamental policies of tort law: to compensate the victim, to deter negligence, and to encourage due care. Siemieniec, 117 Ill. 2d at 258. These same considerations should require that Dr. Ong be held liable if the plaintiffs can prove the allegations in their complaint to a trier of fact.
The supreme court in Siemieniec held that the parents of a child born with hemophilia could recover the extraordinary expenses incurred in order to properly manage and treat the child’s hemophilic condition during his minority from a treating physician who was negligent in prenatal counseling.
In the instant case, plaintiffs do not allege that the baby born to Pam was “a potentially genetically deficient child” as that term was used by the court in Siemieniec. Indeed, both parties below focused strictly on the legal doctrines relating to medical malpractice to resolve the issues of this case. The plaintiffs do not seek as damages the expenses of raising the child born to Pam. They seek only damages for the injuries suffered by Pam. In Cockrum v. Baumgartner, 95 Ill. 2d 193, 196 (1983), our supreme court acknowledged that the majority of states have recognized a cause of action against a physician where it is alleged that because of the doctor’s negligence the plaintiff conceived or gave birth to a healthy baby. In doing so, the courts have generally held that in such actions the infant’s parents may recover for the unsuccessful sterilization, the pain and suffering involved with the pregnancy and birth, any medical complications caused by the pregnancy, the costs of the delivery, and lost wages and loss of consortium.
While Dr. Ong did not perform an unsuccessful sterilization on Pam, the complaint does state that Dr. Ong’s negligence resulted in Pam’s giving birth. I believe the facts of this case bring it within the purview of Cockrum. Indeed, I believe that the failure to check the menses of patients such as Pam greatly increases the likelihood that such patients will be sexually assaulted. Any person who sexually assaults such a patient would be aware that the possibility of being apprehended would significantly lessen the longer the assault went undiscovered.
The issues of proximate cause and duty are not completely separate, and the same policy considerations apply in determining whether a duty existed and whether proximate cause has been established. Cannon v. Commonwealth Edison Co., 250 Ill. App. 3d 379, 384 (1993). Foreseeability is a factor in determining both duty and proximate cause. Benner v. Bell, 236 Ill. App. 3d 761, 765 (1992). If the result is one that an ordinarily prudent person would have foreseen as likely to occur, then the party will be held responsible, even if the precise injury which resulted is not foreseen. Williams v. University of Chicago Hospitals, 179 Ill. 2d 80, 87 (1997).
I believe that an ordinarily prudent person would have foreseen that patients such as Pam were likely to be injured in just this way. I also believe that policy considerations weigh heavily in favor of compensating the victim, deterring negligence and encouraging due care to those most in need of our protection.
The facts in Cowe v. Forum Group, Inc., 575 N.E.2d 630, 636 (Ind. 1991), are strikingly similar to those in the present case. There, the Indiana Supreme Court held that because a nursing home was aware of the disabilities and infirmities of a profoundly retarded adult female which rendered her unable to care for herself, the nursing home had a duty analogous to that of a common carrier to provide protection and care. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 636 (Ind. 1991). As here, the patient was sexually assaulted and the patient’s pregnancy was not discovered until the fifth month. The Indiana Supreme Court held that the nursing home’s duty to the patient extended to her unborn child. The court reversed the grant of summary judgment as to the child’s prenatal claim.
The state and federal regulations upon which the complaint against Dr. Ong are based recognize the importance of providing comprehensive gynecological care to nursing home residents of childbearing age. Dr. Ong and the nursing home negligently failed to follow these regulations or the nursing home’s own policy to monitor Pam’s menses. As a result, Pam suffered injuries and her family was deprived of the opportunity to decide whether to terminate the pregnancy. For the aforementioned reasons, I would reverse the trial court’s grant of summary judgment for Dr. Ong.