Wrongful Birth Liability

by David Cosgrove

Plaintiff filed suit against Cook County, Illinois and a couple of doctors. She claimed that they failed to perform pre-natal tests to detect and/or diagnose the presence of anatomical abnormalities in her unborn child. The Illinois Court of Appeals concluded that all of the defendants were immune from liability because they had not made an actual diagnosis of a known medical condition1. So, they escape liability for failing to perform the tests because by failing to perform the tests they did not make an actual diagnosis? That is a head-scratcher at first blush, so let’s take a quick look a little bit deeper.

The defendants provided pre-natal care to the Plaintiff while she was incarcerated. Her baby was subsequently born with severe abnormalities. She brought suit for “wrongful birth” and negligence. The defendants responded after discovery with a motion for summary judgment claiming that they were immune from liability pursuant to the Illinois Tort Immunity Act. The trial court agreed2.

The Court of Appeals affirmed the trial court’s ruling3. It based this conclusion upon its interpretation and application of two sections of the Tort Immunity Act4. Relying on the case of Michigan Avenue Bank v. County of Cook 5, the court concluded that the defendants were immune because Ms. Major’s case was premised on the defendant’s failure to conduct a physical examination. To pierce the shield of immunity, Ms. Major would have had to allege that her child’s condition—scoliosis and a missing left arm—met the TIA’s definition of a diagnosis specific enough to be classified as a disease or disorder amendable to treatment6. Reading between the lines, it sounds as if Ms. Major was claiming that she would have aborted the child if the defendant’s had discovered the abnormality.

For whatever its worth, there was a robust dissent7. But the majority had a retort for the defense as well:

¶ 37 Finally, the dissent focuses on a woman’s right to choose whether to terminate a pregnancy and contends that defendants’ conduct deprived her of the information she needed to make an informed decision. We cannot quarrel with this point. The same can be said of a woman who presents with a tumor in her breast—she has the right to be told whether the tumor is cancerous and to be provided the information necessary to elect a course of treatment. But in the Act, the legislature has made a policy decision regarding the scope of the conduct of public health employees that will subject them and their public employer to claims for damages. The conduct complained of here—the failure to properly read the results of diagnostic tests and, as a result, missing the diagnosis of a medical condition—is within the scope of the immunity afforded under the Act. Michigan Avenue Bank,. 191 Ill.2d at 512, 247 Ill.Dec. 473, 732 N.E.2d 5288.

It always makes my eyes roll when court’s apply the presumption that the Legislature “made a [sound] policy decision,” as opposed to a political one, a provision inserted by a lobbyist, or one in which unintended consequences were simply not…intended.

In sum, if you don’t look for a condition or find a condition but don’t diagnosis it, you are immune under the TIA. The Cosgrove Law Group partners with other law firms in wrongful death and catastrophic birthing cases.

1Major v. County of Cook, et al., 2014 WL 576 341 (Ill.App.).

2Id. at 1.

3Id. at 8-9.

4Id. at 4-8.

5732 N.E.2d 528 (2000).

6Major at 6-8.

7Id. at 9-14.

8Id. at 8.