Litigation

WRONGFUL BIRTH DECISION - PARENTS CAN RECOVER DAMAGES EVEN AFTER CHILD TURNS 18

By Mark P. Loftus, Esq.

The Illinois Appellate Court[First District] recently released the Clark v. Children's Memorial Hospital decision, which clarifies what parents may recover in a "wrongful birth" case. "Wrongful birth" refers to the claim of parents who allege they would have avoided conception, or terminated a pregnancy but for the negligence of those charged with genetic counseling as to the likelihood of giving birth to an impaired child.

In the Clark case, the plaintiffs, Amy and Jeff Clark had a son, Brandon, in 1997. At 15 months of age, Brandon began showing signs of developmental problems, including poor head growth and difficulty walking and talking. In 2001 Amy sought genetic counseling from Dr. Barbara Burton to determine if Brandon suffered from Angelman Syndrome - a disorder caused by the abnormal function of the gene UBE3A , located in a small region of chromosone 15. In about 80% of those with Angelman syndrome, this small region is deleted from the maternally derived chromosone due to a mutation.

Dr. Burton informed Amy that all known genetic mutations for Angelman Snydrome in Brandon had been ruled out. That information was incorrect - in November, 2000, an analysis of Brandon's DNA had been done at Baylor College of Medicine. The analysis showed that Brandon did indeed suffer from Angelman Syndrome. Siblings of children with the mutation of the UBE3A gene[like that shown in Brandon] have a 50% risk of being borne with Angelman Syndrome.

Dr. Burton never obtained the Baylor College of Medicine results, and never informed Amy that Brandon did suffer from Angelman, due to the UBE3A mutation. As Dr. Burton incorrectly advised Amy that all known genetic mutations for Angelman Syndrome in Brandon had been ruled out, Amy planned to have another child.

On Marcy 27, 2002, Amy gave birth to another son, Timothy. In June, 2002, Amy had some concerns regarding Timothy's development. In September, 2002, Amy contacted Dr. Soma Das at the University of Chicago to discuss Timothy's symptoms. Dr. Das indicated that Timothy and Brandon should be entered into a study of Angelman syndrome, but that boys could not enter without a complete set of Brandon's records. Shortly thereafter, Amy contacted Baylor College of Medicine to get Brandon's records. On September 30, 2002 she learned for the first time that Brandon's UBE3A analysis was not normal. Subsequently, Timothy was diangosed with Angelman Syndrome.

The Clarks filed suit ffor wrongful birth, seeking damages for the extraordinary costs of caring for Timothy during his minority, and when he became of age. In addition, they sought recovery for lost wages. The trial court determined that plaintiffs could only recover damages for the extraordinary costs for caring for Timothy until age 18. The plaintiffs then appealed that decision. After a careful review of the relevant caselaw, the Appellate Court ruled that the plaintiffs could plead a cause of action for wrongful birth to recover damages for the extraordinary costs of caring for the unemancipated, disabled child beyond the age of 18.

Full post as published by Illinois Lawyer Blog on May 21, 2009 (boomark / email).