dissenting:
I am pleased that my colleagues still recognize that all human life is precious. I wonder, though, why they save that observation for this case. No one here is suggesting or has ever suggested that Emmanuel’s attention deficit hyperactivity disorder renders him any less of a person or makes him less deserving of parental love or the protection of the law than other children.
My colleagues rightly point out that we all have faults and that none of us is perfect. Again, however, I wonder what that really has to do with the dispute before us. While we may all suffer congenital deficiencies, not all such deficiencies stand on the same plane. Contrary to the majority’s implication, lack of athletic ability or short stature or the gene for male pattern baldness are qualitatively different than birth defects or mental disorders, and the law should be sophisticated enough to tell the difference. Allowing recovery for the extraordinary expenses associated with treating a serious and medically recognized congenital defect of the sort afflicting Emmanuel does not mean that we will also be obliged to allow claims by parents who are simply disappointed that their offspring do not possess all of the attributes of some idealized "normal” child.
In Cockrum v. Baumgartner, 95 Ill. 2d 193 (1983), this court relied heavily on public policy considerations in assessing whether and to what extent recovery should be allowed in so-called "wrongful pregnancy” cases such as this. The court determined that such considerations precluded actions to obtain reimbursement for the regular costs associated with rearing a child. Emmanuel’s parents, however, are not asking to recover such costs, and nothing in Cockrum precludes recovery for the type of costs involved here.
Treatment of Emmanuel’s condition will involve extraordinary expenses, not faced by other parents, that would never have arisen if defendants had performed the tubal ligation properly. There is no sound public policy justification for placing the burden of those expenses on Emmanuel’s parents rather than the responsible parties. If we really value the sanctity of life and the importance of the family unit, we should allow recourse to the parents who have been the victims of medical malpractice and who will have to deal with its consequences on a day-to-day basis. Permitting the medical providers to escape the consequences of their mistakes accomplishes nothing.
Following Cockrum, this court held in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 258-60 (1987), that the parents of a genetically or congenitally defective child may bring a wrongful pregnancy action to recover the
"extraordinary expenses — medical, hospital, institutional, educational and otherwise — which are necessary to properly manage and treat the congenital or genetic disorder.”
This holding should be dispositive of the matter before us today.
The notion advanced by the majority here that plaintiffs’ claim must fail because they did not specifically allege that the defendants "knew or should have known of the parents’ desire to avoid conception of a child with a particular condition” (179 Ill. 2d at 91) is based on an overly narrow interpretation of Siemieniec. In any conception and birth there is a risk of congenital defects, and whenever a doctor performs a sterilization, he knows or should know that a child may be born with such defects if the sterilization is performed improperly. That is enough, in my view, to satisfy the issue of foreseeability. Requiring that the parents be concerned about a particular defect makes no sense and serves no purpose.
Consider, for example, a mother who is sterilized because she fears her child will be born with a hereditary disorder such as Tay-Sachs Disease; the sterilization is done negligently; the mother conceives; and the resulting child is born not with Tay-Sachs, but with spina bifida. There is still a congenital defect, but because it was not the one anticipated, the majority’s view would leave the mother without recourse for the extraordinary expenses she will incur in raising the child. In effect, the doctor would escape liability based on nothing more than the turn of the genetic roulette wheel. Chance is no basis for a rule of law, especially where the consequences are as serious as the welfare of an afflicted child.
For the foregoing reasons, I would answer the first certified question in the affirmative. Emmanuel’s parents may bring an action against the physicians and hospital responsible for his mother’s failed tubal ligation to recover the extraordinary expenses they will incur in connection with his attention deficit hyperactivity disorder. The judgment of the appellate court should therefore be reversed, and the cause should be remanded to that court with directions to answer the second question certified by the circuit court.
JUSTICE BILANDIC joins in this dissent.