dissenting:
I disagree with the majority’s analysis of the issues presented in this case and I disagree with the majority’s conclusion as to count I of the amended complaint. I also disagree with the majority’s treatment of certified question 2. I would reverse the dismissal and judgment entered in favor of defendants on count I. I would also reverse the order striking paragraph 11 of count II and give plaintiffs leave to plead paragraph 11 again to take into account the answer to certified question 2 as shall be stated herein. 1 believe this case should be remanded for further proceedings consistent with this opinion.
As to count I, the majority’s analysis and conclusion are untenable for several reasons. First, the majority wrongfully assumes that count I is a claim for the wrongful life of Jeffrey Goldberg. In fact, plaintiff is not seeking to recover for wrongful life and, contrary to the majority’s analysis, plaintiff does not endow his cause of action with great social issues involving wrongful life. Rather, as he is entitled under our existing law, plaintiff is merely seeking redress for pain and suffering caused by defendants’ negligence.7
The error made by the majority comes to the fore by a simple examination of the amended complaint. Count I does not allege a recovery for wrongful life, and the term “wrongful life” does not appear anywhere in the amended complaint. Count I is merely a survival action (Ill. Rev. Stat. 1983, ch. 110½, par. 27 — 6) to recover for pain and suffering caused by defendants’ negligence. As such, it should be treated like any other survival action, i.e., the tortfeasors should be made to compensate the decedent’s estate for the pain and suffering endured by the decedent. Plainly, the majority is wrong in pasting a wrongful life label on plaintiff’s claim and then contending that it fails because a party cannot recover for a wrongful life claim. Since plaintiff is not seeking damages for wrongful life, the majority’s contention is simply argument by epithet rather than logic or reason.
Next, the majority’s conclusion that Jeffrey Goldberg did not suffer any injury as a result of defendants’ negligence is plainly untenable. On this point, the majority totally ignores reality and adopts instead an ontological precept that a child is better off enduring real pain and suffering than the child would have been had the child not been born at all. In reaching its conclusion, the majority overlooks the fact that judges must deal with reality and not metaphysical concepts. Metaphysics is a subject that is best left to the theologians and the philosophers and others similarly inclined. Here, the sober reality with which we, as judges, must come to grips is that Jeffrey Goldberg endured immense pain and suffering that he would not have had to endure had defendants not been negligent. To hold that he was not injured as a result of defendants’ negligence not only shunts reality but also imposes a cruel hoax upon the people involved in these tragic circumstances. I find the majority’s conclusion indefensible.
The majority also wrongfully concludes that count I should be barred because of the “difficulty in the measure of damages.” In count I, plaintiff is seeking damages solely for pain and suffering, which are traditional elements of damages in a tort case. Thus, the only uncertainty here is the amount of damages and not whether damages resulted at all.
It would be a travesty of justice to deny any recovery to an injured party solely because the tort is of a nature that the amount of damages cannot be determined with exactitude. To deny any recovery for that reason would relieve the tortfeasor from having to make redress for his wrongful conduct at the expense of the injured party. Thus, in such cases it is sufficient for recovery if the evidence shows the extent of the damages by reasonable inference, albeit not with absolute certainty. The tortfeasor has no justifiable complaint with such a prescript since the risk of uncertainty should be rightfully borne by the person who causes the suffering, rather than the person who endures the suffering. Difficulty in the ascertainment of the exact amount of damages should not preclude recovery.
To support its position, the majority states: “The primary purpose of tort law is to compensate plaintiffs for the injuries they have suffered wrongfully at the hands of others, and damages for negligence are ordinarily computed by comparing the condition plaintiff would have been in but for the tort with plaintiff’s impaired condition as a result of the wrong. *** In a cause of action seeking recovery for wrongful life, the trier of fact would be required ‘to measure the difference in value between life in an impaired condition and “the utter void of nonexistence.” ’ ” The majority also states: “Such a computation is ‘a task that is beyond mortals, whether judges or jurors.’ ” Here again, the majority simply fails to appreciate that count I is not “a cause of action seeking recovery for wrongful life.” In count I, plaintiff is merely seeking to recover damages for pain and suffering. As in any other negligence case, the trier of fact would only be required to compare pain and suffering versus no pain and suffering to measure the amount of damages. Plainly, the task of the trier of fact would be no more difficult in this instance than it would be in any other negligence case. Certainly, the trier of fact would have a less difficult task in measuring damages in the present case than the trier of fact had in Jones v. Karraker (1983), 98 Ill. 2d 487, 457 N.E.2d 23, where the court affirmed a verdict in favor of the plaintiff in a wrongful death action in which the decedent died en ventre sa mere.
In its opinion, the majority analyzes many cases which discuss the creation of a new cause of action for wrongful life. Plainly, these cases are not analogous to the present case, because here plaintiff is suing to recover solely for pain and suffering resulting from a negligent breach of duty, and the existence of the duty to the child is conceded by the majority. Recognition of plaintiff’s claim here does not mean the creation of a new tort or a cause of action for wrongful life. In addition, all of the cases relied upon by the majority involve attempts to recover for “wrongful life,” a term which does not even appear in the amended complaint here. Moreover, the cases relied upon by the majority are from other jurisdictions. I do not believe that Illinois needs to walk in the shadow of other jurisdictions, but rather, I believe that Illinois should adumbrate the path of American jurisprudence. Thus, I am neither persuaded nor governed by the cases relied upon by the majority.
The only other matter relating to count I that needs to be discussed involves the sufficiency of the factual allegations to establish a duty on the part of defendants. Here, I agree with the majority that the factual allegations in the amended complaint sufficiently allege the existence of a duty on the part of defendants to have informed Nancy and Michael Goldberg of the risk of Tay-Saehs and the availability of testing procedures for the disease.8 In my opinion, this duty that was owed by defendants to Nancy and Michael Goldberg logically extended to Jeffrey Goldberg. (Cf. Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) This latter point is conceded by the majority.
For the reasons stated, I do not agree with the majority that count I fails to state a cause of action. I believe that the trial court erred in dismissing count I and entering judgment in favor of defendants on that count.
I next address the interlocutory appeal from the order striking paragraph 11 of count II.9 Since the interlocutory appeal is being taken pursuant to Supreme Court Rule 308, the only matters that are before us are the two questions certified by the trial court and how the answers to the two questions affect the striking of paragraph 11. (See Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 1048, 416 N.E.2d 1110, 1112-13; Ill. Ann. Stat., ch. 110A, par. 308, Committee Comments, at 452, Supp. to Historical and Practice Notes, at 453 (Smith-Hurd 1969-1983 Supp.).) The two questions that were certified are stated as follows:
“(1) Does a cause of action exist in Illinois on behalf of parents for damages in the form of the costs of increased medical, hospital and physical care rendered to a child born with an inherited disease when the parents have also alleged that: defendant is an obstetrician who attended the mother; defendant knew or should have known the parents were possible carriers of the inheritable trait; tests exist to screen parents for the trait and other tests exist to test unborn infants for the disease; minimally competent obstetricians in practice disclose risks of the disease and disclose existence of the tests and perform the tests; the defendant did not disclose the risk of disease and did not disclose the tests and did not do the tests; had defendant disclosed the risks and tests, the parents would have ordered them; the tests would have shown that the fetus was diseased; the mother would have aborted the fetus; by virtue of abortion the parents would have avoided the costs alleged as damages.
(2) Do the parents under the same allegation have a cause of action for their own emotional distress incurred as the result of seeing and caring for their child while his physical condition degenerates into certain death.”
I agree with the majority that the answer to question 1 is in the affirmative. I wish to add, however, that for minor children the cause of action that is described in question 1 rightfully belongs to the parents and not to the child. (See Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 894-95, 412 N.E.2d 624, 628.) Thus, the fact that Jeffrey Goldberg died on March 10, 1981, does not affect the parents’ cause of action.
The gist of question 2 is whether a plaintiff may recover for emotional distress caused by a defendant’s negligence. In answering this question, it is important to note that the trial court entered its order and certified the question on June 11, 1981. In 1983, the supreme court decided Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1. In Rickey, the supreme court expounded on the issue presented here and held that a plaintiff may recover for emotional distress caused by a defendant’s negligence if the plaintiff shows “physical injury or illness as a result of the emotional distress caused by the defendant’s negligence.”10 (98 Ill. 2d 546, 555, 457 N.E.2d 1, 5.) Thus, I believe that the answer to the second question is in the affirmative if the parents show physical injury or illness as a result of the emotional distress caused by defendants’ negligence.11
In addition, in Rickey, the court stated: “The standard we adopt here shall be applied to this case and to all cases not finally adjudicated. [Citation.] We judge that under the circumstances the plaintiff here should be permitted to plead again.” (98 Ill. 2d 546, 556, 457 N.E.2d 1, 5.) Here, since the standard adopted by the supreme court in Rickey is applicable, but the trial court entered its order and struck paragraph 11 before Rickey was decided, I believe that plaintiffs should be permitted to plead paragraph 11 again to take into account the answer to certified question 2. Substantial justice demands that plaintiffs be given this opportunity.
Accordingly, I would reverse the dismissal and judgment entered in favor of defendants on count I of the amended complaint. I would also answer the two questions that were certified by the trial court as I have stated herein. In addition, I would reverse the order striking paragraph 11 of count II and permit plaintiffs to plead paragraph 11 again to take into account the answer to certified question 2. I believe this case should be remanded for further proceedings consistent with this opinion.
ADDENDUM
This dissent was filed before the majority opinion was modified to its present form. The modification in the majority opinion relates to the majority’s treatment of and conclusion as to certified question 2.
Specifically, count I states that Jeffrey Goldberg suffered “loss of motor function, loss of sensory function, blindness, deafness, pain, disability and numerous other injuries” resulting from defendants’ negligence.
When genetic defects are suspected by a physician, testing procedures that may be considered include amniocentesis and the more recently developed chorionic villi sampling. See Van, New test checks for birth defects, Chicago Tribune, Oct. 13, 1983, Tempo, at 1.
Paragraph 11 of count II states: “As a direct and proximate result of the aforesaid careless and negligent conduct of the defendants, and each of them, plaintiffs, Michael and Nancy Goldberg, have suffered and will continue to suffer immeasurable emotional distress in the seeing and caring for their child, while he loses motor function, sensory function, sight, hearing, becomes disabled and suffers numerous other injuries resulting in damages of a personal, permanent and pecuniary nature and finally certain death.”
Under Rickey, if the plaintiff was a bystander at an accident in which another person was physically injured, then in order for the plaintiff to recover for his own emotional distress, he must also “have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact.” (98 Ill. 2d 546, 555, 457 N.E.2d 1, 5.) In the present case, this principle is not applicable since plaintiffs in count II, Michael and Nancy Goldberg, are not attempting to recover as bystanders to an accident. Here, the negligence alleged in count II is defendants’ “failure to inform” plaintiffs. This negligence flows directly from defendants to plaintiffs. Thus, if plaintiffs are able to show physical injury or illness as well as emotional distress resulting from defendants’ negligence, they should be able to recover for both elements of damages just as they would in any other negligence case where the negligence is direct.
I do not consider this conditional requirement to recover for emotional distress an undue burden since medicine has now advanced to the stage where there is substantial evidence available to establish that emotional distress and physical injury or illness are generally matters in consort. See, for example: Effects of distress on the heart (Crisp & Queenan, Myocardial Infarction and the Emotional Climate, 1(8377) The Lancet 616 (March 17, 1984)); abnormalities in immune function caused by emotional distress (Riscalla, The Influence of Psychological Factors on the Immune System, 9(3) Medical Hypotheses 331 (September 1982)); relationship between severe emotional distress and ulcers (Peters & Richardson, Stressful Life Events, Acid, Hypersecretion, and Ulcer Disease 84(1) Gastroenterology 114 (1983)); psychological stress and certain muscle pain and illness (Moody, Kemper, Okeson, Calhoun & Packer, Recent Life Changes and Myofascial Pain Syndrome, 48(3) Journal of Prosthetic Dentistry 328 (September 1982)); emotional stress and multiple sclerosis (Warren, Greenhill & Warren, Emotional Stress and The Development of Multiple Sclerosis: Case-control Evidence of a Relationship, 35 Journal of Chronic Diseases 821 (1982)); biological responses to stress (Bridges, The Physiology and Biochemistry of Stress: Some Practical Aspects, 226 The Practitioner 1575 (September 1982)); the effects of stress upon the nervous system (Trimble & Wilson-Barnett, Neuropsychiatric Aspects of Stress, 226 The Practitioner 1580 (September 1982)).