Anderson v. Wagner

378 N.E.2d 805, 61 Ill. App. 3d 822
CourtAppellate Court of Illinois
DecidedAugust 1, 1978
Docket14610
StatusPublished
Cited by20 cases

This text of 378 N.E.2d 805 (Anderson v. Wagner) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Wagner, 378 N.E.2d 805, 61 Ill. App. 3d 822 (Ill. Ct. App. 1978).

Opinions

Mr. PRESIDING JUSTICE REARDON

delivered the opinion of the court:

The plaintiffs, Thomas and Marilyn Anderson, appeal the dismissal of their medical malpractice action against the defendant, William L. Wagner, M.D., for damages caused by the birth to them of a child who is afflicted with birth defects which allegedly resulted from Mrs. Anderson’s contraction of rubella or German measles during the early stages of her pregnancy. In dismissing the action, the circuit court found that the action was not timely filed within the applicable period of limitation and that, in any event, the plaintiffs do not possess an actionable claim for the birth of their child even if they are able to establish that defendant performed the negligent acts alleged in the original and amended complaints.

On June 23, 1977, and on August 29, 1977, plaintiffs filed their original and amended complaints which alleged that defendant treated Mrs. Anderson during her pregnancy from September 1972, through May 21, 1973, but that defendant failed to inform her of the positive results of a rubella test he had administered to her. Plaintiffs contend that defendant failed to inform them of the risks incident to Mrs. Anderson’s pregnancy, that he failed to treat Mrs. Anderson’s condition in a manner suitable and customary for his profession, that he negligently read Mrs. Anderson’s test results, that he failed to refer Mrs. Anderson to another physician capable of treating her condition, that he neglected to advise Mrs. Anderson of alternative treatments and procedures available to her and that he fraudulently concealed his negligence from the plaintiffs. The complaints also allege that Mrs. Anderson gave birth to a son on May 20, 1973, but that it was not until January 26, 1976, that plaintiffs first had reason to know of defendant’s negligent care.

On appeal, plaintiffs contend that their action is not barred by the statute of limitations. They also contend that an obstetrician who neglects to inform his patient of the fact that she has rubella and may give birth to a defective child should be liable not for the child’s birth, but for damages representing the difference between the reasonable financial support for a normal child and that required for the defective child, plus compensation for the parents’ pain and suffering. To support this proposition, plaintiffs rely on Jacobs v. Theimer (Tex. 1975), 519 S.W.2d 846, which held that the plaintiffs in that case stated a cause of action on facts similar to those presented in the instant case. (See also Sherlock v. Stillwater Clinic (1977), _Minn. _, 260 N.W.2d 169 (cause of action stated for birth of a healthy child subsequent to a negligently performed vasectomy); Karlsons v. Guerinot (1977), 57 App. Div. 2d 73, 394 N.Y.S.2d 933 (cause of action stated by a 37-year-old mother with a thyroid condition who gave birth to a mongoloid child without being advised of the risks inherent in her pregnancy); Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250 (cause of action stated for negligent blood transfusion to mother years prior to birth of plaintiff daughter afflicted with Rh syndrome).) The defendant, on the other hand, contends that plaintiffs’ action is barred by the statute of limitation. He also contends that his alleged negligence did not occasion the child’s injury because, after Mrs. Anderson contracted rubella, the child lost all chance of being bom without birth defects. Defendant contends that, as a result, the only damages which might be assessed against him would have to reflect the difference between the birth of a child with birth defects and the birth of no child at all. Defendant’s theory is premised on Gleitman v. Cosgrove (1967), 49 N.J. 22, 227 A.2d 689, where, on facts similar to those in the instant case, the court held that the complaint did not give rise to damages cognizable at law. (See also Howard v. Lecher (1976), 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (parents could not recover for mental distress and emotional disturbance resulting from doctor’s failure to test for Tay-Sachs disease).) Defendant’s theory becomes attractive, albeit more complex, when it is recognized that abortions were, for most purposes, illegal in Illinois at the time of Mrs. Anderson’s pregnancy. Section 23 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 23 — 1) (repealed by P.A. 78-225, §10, eff. July 19, 1973).

Prior to November 11, 1975, section 21.1 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 22.1) provided:

“Whenever in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body; provided that no such action may be commenced more than 10 years after such treatment or operation.”

Between November 11, 1975, and September 19, 1976, section 21.1 provided:

“Whenever in the course .of any treatment or operation, any foreign substance other than flesh, blood or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body; provided that no such action may be commenced more than 10 years after such treatment or operation.
No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 5 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Ill. Rev. Stat. 1975, ch. 83, par. 22.1.)

After September 19, 1976, section 21.1 provided:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

The version of section 21.1 (Ill. Rev. Stat. 1973, ch. 83, par.

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Bluebook (online)
378 N.E.2d 805, 61 Ill. App. 3d 822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-wagner-illappct-1978.