wrongful birth plaintiffs can recover what we've called post majority damages a second whether wrongful birthplace can seek damages for negligent infliction of emotional distress and third and the alternative whether the plaintiff's claims against children memorial and and dr burton are barred by the statute of limitations with respect to the coast majority expense issue the issue is is determined we submit by two general principles the first which is undisputed is that for parents to recover a child's medical expenses in a tort case the parent must be legally liable for those charges in the live billet he cannot arise after the fact based upon the parents voluntary assumption of responsibility for those expenses this is the second principle is that illinois law common law and statute does not obligate parents to provide for a disabled child's medical or other expenses past the age of majority and putting those two principles together the conclusion is that a parent bringing   full birth claim just like a parent bringing any other to or claim under illinois law cannot recover the cost for caring for an adult disabled child the second principle is the only one that's really at issue here and the this court in general the issue of whether parents have a post majority duty of care and this court and the general assembly has have spoken very clearly on this issue with respect to the common law this court held back and eight hundred ninety six and people to the use of period county vs hill that the duty of support that a parent has for an adult child may be a moral duty it may be a natural duty but it is not a legal duty and is not imposed under the common law the general simply stepped in an eighteen seventy four with the popper's act and impose the statutory duty on parents in those situations but as we set forth in our brief over the decades the general semele reduced that duty  duty to support or provide medical expenses or cover other expenses of an adult the sable child an adult meaning past the age of eighteen or if the child is still in high school up until the age of majority yes i think the public policy in this situation it has already been determined it's there's the common law and then there statute and the court held over centuries ago that the common law policy yes the court can speak to public policy but in a situation like this where the law is consistent across the board common law and statutory and a cause of action that really turns on very is the court recognize in so many act very difficult legal and moral and philosophical issues here the injury is there's no there's no doubting that at the plaintiffs here are very sympathetic but there's also no doubting that as in any wrongful birth case the injury here is is the birth of a child is not going to mean that should a distinction be ma no no because again it's the settled principle of illinois tort law the principle that governs all other cases is that a parent cannot recover post majority expenses unless there is a legal obligation a preexisting legal obligation on the parent to do so and in illinois there is no such obligation and what the plaintiffs are asking for here is an exception to that rule for i'm happy to address that issue now and then return to the issue of medical expenses under under ricky and under so many which apply the ricky zone of danger test in the context of a wrongful birth case there are a number of requirements that must be satisfied for there to be a claim for emotional distress one of them is that the plaintiffs must be quote in such proximity to the accident in which the director tim was physically injured that there was a high risk to him of physical impact and quote and the second requirement is that the plaintiff have suffered physical injury as a result of that derives from it follows from the emotional distress and in so many act the court rejected the emotional distress claim brought by the plaintiff in that case and and we submit that nothing has happened over the past twenty three years to warrant a different result in this case the plaintiffs here argue that they're in the zone of danger because  many not just any physical impact satisfies the zone of danger room certainly there is physical impact here but it's years after that there is the spatial and temporal proximity to the accident that resulted and intimate these birth to fall within the zone of danger rule in corgan in court and explain this for years after so many corgan held at a person is within an accident zone of danger when he or she is sufficiently close to that accident that he is subjected to a high risk of physical impact and anything from the accident itself and anything from the accident itself and the accident is what and did up causing the harm in here what ended up causing the harm was the alleged mr i know sis of the genetic angelman syndrome and at that particular point in time the parents had no fear of danger and a deputy to her point of time the parents were not in danger of any physical impact at the time of the diagnosis the physical impact they are alleging happen years later and that just that that's not the kind of fiscal impact that ricky speaks of and that so many act speaks of and with respect to the second requirement that some complaint can be construed as alleging physical injury that arises from their emotional distress and they point to a part of the complaints that's reproduced at page eighty forty seven of our pendi it's simply not there it's not difficult to write a complaint that says we we've suffered emotional distress and as a result of that emotional distress we're suffering this that or other physical injury for which we have seen a physician  and that that's just not in there in the complaint can't be stretched to make that allegation recognizing that we i think perhaps recognizing that the zone of injury doctrine doesn't quite allow them to stage an emotional distress claim the plaintiffs next argue that well we're not bystanders at all were directed timbs and of course of their direct victims the ricky zone of danger standard doesn't apply but that victim case and and the court held that so many act like in the parents to bystanders who are witnessing the effects of hemophilia on their child and so many act therefore simply apply the zone of danger rule to a bystander case as the parents suffered emotional distress because of their child's disease so similarly act certainly indicated in court and confirmed that wrongful birth plaintiffs are bystanders and not wrec right the timothy's cause of action in this case would be a wrongful life cause of action the cause reaction saying that i shouldn't have been born at all and in so many act the court held that illinois just wouldn't although a couple states recognize that and don't want to rely on on and on medicaid or other government programs which is a voluntary choice on their part in that limited sense they are not being fully compensated but so many expo correctly to that issue so many excess acknowledged forthrightly expressly that in is a general rule the central purpose of tort law is to allow the plaintiff to recover all foreseeable they have edges that arise from a negligent debt put it out there in acknowledged it and it went on to say in the same paragraph that rule does not apply in wrongful birth cases he cuz it's such a unique to and because there are these philosophical and legal and moral issues and because again at root the injury is the birth of a child and because of the unique nature of the wrongful birth toward that general principle of tort law that that you mentioned doesn't apply think that the term was with full vigor and wrongful birth cases and what the plaintiffs here are doing is i are more damages than an ordinary tort because in an ordinary torque case brought by a parent to recover for the medical and other expenses of a child there must be legal liability on the parents or must be a legal not a moral not a natural but a legal obligation on the parents post majority and there is not in illinois and what the plaintiffs are saying is that ok for all these other towards parents cannot recover post majority expenses before the wrongful birth tore there ought to be an exception to that and we ought to be able to recover close majority expenses and as i said that turns many act on its head it gives wrongful birth play host a preferred a post majority obligation the the plaintiffs they don't address the common law case that we have cited the pure reverses whole case don't address the family expense act don't address the evolution of the to the public assistance code to the public aca and i think that's that's significant because i think in the case that there really is no no response there what the plaintiffs do do is focus on section five thirteen of the marriage act which which does allow a court to require one or both divorced parents to provide educational support to any adult child answered provide support to a disabled adult child established a general principle that a court can decide on a case by case basis whether parents have a legal obligation post majority again that's very important because under under the first principle i now right and they want to stop it weren't so in that case the appellate court didn't address it in that case with a what i'm sorry that the plaintiffs didn't seek it the supreme court did not what the supreme court did is is mention that yes there are some other states that allow post majority damages and run full birth cases but but it's interesting in that very brief discussion majority and that that's those states and in those states as we laid out in our brief there is either a statutory or common law or or both kinds of obligations of post majority support on parents  post majority support and i'm kind of using that as a negative example so the marriage act does not provide a general principle that these kinds of issues are decided on a case by case basis  general assembly drew very clear lines in the public a code in the mental health code in the family expense act there is no general obligation to provide for parents pride post majority support there is disabled child there is may have had angel moment but how would they either know or should have known that it was the result of the billiard a report the test until they did get the test definitively saying that   certainly is not the trigger of when the statue of limitations arises whether all and cases like whether all unknowing hold is that the trigger happens when the plaintiff is possessed of sufficient information concerning its injury and its cause to put a reasonable person on inquiry to term and whether actual contact is involved so you don't need the actual test results in your hands you just need to have some knowledge but everything we were told at this point is that it could be genetic it could be random i mean they knew when they had their next child or with the the possibility that their child would have angel ray also were alerted that if it was genetic there was a fifty percent greater chance so yeah they they knew that at a point probably going further back than you allege is the date they knew or should have known but i'm just thinking because of the the nature of the disease there could be random or did they really have knowledge or should have known until they had those test results and said definitively it was yes they should they were on notice that something could have gone wrong is what what what the task is again it's not certainty it's not having the test results in her hand it's is there something going on here that warrants a follow up that warrants further examination and here and in august of zero two which was more than two years before children's was named as a defendant o the miss clark sat i believe that timothy has angel man syndrome and given that given her knowledge of the genetic makan is and given that she knew what she had been advised at that point she was certainly put the plans were certainly put on a duty of inquiry that was sufficient to trigger the statue of limitations thank you warringah krista hurley for plan of i'm going to pick up on that list issue just because it's i think it's fresh in everyone's mind actually there's no way they knew that this child had a genetic angelman at the time  timothy was in those early formative days what happened was mrs clark heard about a study that was being done by somebody who was trying to study children who had random  enjoyments who had no genetic known genetic cause and as a result she applied for the study and the doctor said well yeah you can be in the study let's see all your genetic tests and so she went and got her file handed it to him and the doctor said well where is the  ve three a test and she said well you know it should be there and it's not and so then she went on a quest to try to get it from one of her two board certified geneticists that had told her she had no genetic cause  and that doctor was not compliant she finally had to go to baylor and it wasn't until september thirtieth less than two years before we filed against this defendant that she was told on the phone by some person who was on name we don't even know who it is yet this test is abnormal so that was the first time she found out there was a genetic cause and as your honor just pointed out angela's can be genetically caused or it can be random if it's random then there's no cause of action here of any kind and so it's not until she knows that she had the genetic form that she knows she has a cause of action and it wasn't until we she then contacted a lawyer after she found that out and we chased it down got the  report and found out it was infected genetic cause so there's no way she could have known this was wrongfully cause until that day going back to the first issue that was discussed the defense is trying to redirect the court on this topic to what the parents are liable for paying for their their children you know minors or dalt the issue here is tortfeasor be liable for paying as a result of causing an injury in this particular case this is a common law tort that was recognized by this court and so many twenty three years ago and what the court recognizes that the parents are the victims here the parents of the ones who have been harmed by this negligence and so then the question becomes who's going to pay for the damages will the damages and so many act didn't or at least  they weren't put of gone into the years after the child was going to be eighteen here is damages are going to continue for the life expectancy of this child and that will be you know at least seven  well into his seventy's these children are profoundly brain damaged and need twenty four hour a day care to take them to the dentist is it's not a matter of going in for a twenty five minute  appointment it's about a three or four day process they have to be put under general anesthesia so when this child is twenty five years old and when he's thirty five years old those extraordinary damages are going to continue to accrue ok those damages have been caused by a tortfeasor in the tortfeasor should be held responsible for those to suggest that and there's there's practical problems that will be associated with this for this family going forward many health care providers or many of the best health care providers will not take public aid or or or medicaid and so you know you in  for example a mrs clark takes timothy to st louis for his eye care there are no guarantees then the state or the federal government will have the money to pay these damages in the future and i and i actually would can compare this more or less to a you know a collectible source type argument being made by the defense where they really want the benefit of the fact that well the family can go get this money to pay for these expenses from the state or from the federal government some way so we shouldn't have to do it they're trying to get the benefit of the hope that some third party will pay these costs in the future and i don't think that it is or should be the public policy of the state i think the public policy of this state i think recognized in sit in so many act is that when someone is negligent and that negligence address and this court has the power to address it if it if it chooses and i think there's two ways that you can go i want to as we can we can prove and we'll prove at trial that this family's going to take care of this child for his entire life and there's no there's no question that's going to happen if the court's not comfortable with that i think the court has the equitable power as the court did in the florida case which is it's called push to say the money will be held in trust for medical expenses if there is some concern by the court that the parents will use it as it should be used that can be done and i think should be done you know this is a common law toward which is some unique aspect which i think you just pointed  out how does a court know that the parents will spend the money on a child i think we can prove it i think a jury can find that we can prove it but i also think if the court and i think this court has the power to make the common law recognize that the attempt to sort of tie this type of case to various statutes which are and have been enacted for other reasons really is an attempt to mr wreck the court from the real issue which is that the tortfeasor should be were should be liable for damages it causes so what i'm saying is you know the family expenses act and you know enacted over one hundred years ago to make sure that  you know families don't fraudulently avoid their creditors really was not written with this type of a case in mind and this case really has to be a rule on a case by case basis as i think  the court hinted at in since many act by not going to the majority issue at that point they're just waiting for it to come up so are you are you saying that you don't you don't agree that the law currently is  realistically in this case the parents can i group the court the parents can't be sued for the child's medical expenses past the age of majority but and as a practical matter when this boy is twenty years old he's going to need some medical care the parents are going to have to take him into a provider and the providers who say who's paying for this if the state's not there to pay for the state chooses you know for whatever reason if the state doesn't pay then the parents are going to have to pay because obviously the child doesn't have the ability to entered into a contract so these damages are going to continue to accrue regardless of whether the parents can be sued or not for the damages  down to an issue is fine is this want to get it right i don't think is is too likely and i don't think it's something this court has to wait for because we may be waiting a long time for something like that i think the proper way to handle a common law tort damages is for the courts that make a common law to establish what the proper damages are and so just to suggest that because the parents can't be sued for these medical expenses after the boy is eighteen does not change the fact that these expenses are going to be accruing over the years they're going to continue to happen and it should not be a windfall that falls upon a tortfeasor do not have to pay these case where the child was a human feely act at the age of eighteen there was an indication i think at least in that the situation that that boy would be able to enter into his own contracts and get his own health insurance and his own debts and so there was no suggestion that the parents were going to be you know saddled with this burden for their whole lives the point in this case is that we have these parents who will have the burden of rearing this child for their own you know for his entire life in their entire lives and so it does differ you know the distinction between this case and other cases where parents maybe try to get damages for their emancipated children is that you know if there's some order reckon your child's involved in order rock he can get all the damages for him selfe in his own cause of action or his the state can get it in this case because of the nature of the wrongful birth only the parents can get damages the child doesn't entitle to get any damages so one of the law there's not going to be a double recovery here allowing the parents to get these damages so i think there's a major distinction between the cases cited where parents aren't able to get damages for adult children there's a reason for that the children themselves can get those damages in this case the children can't get them and the damages end up not getting paid by anyone if you don't allow the parents to recover them and  where this court specifically held that were the party is a direct victim of the tort there is no need to plead a zone of danger and so in court and there was a it was a  psychological malpractise case where say a psychiatrist was having sexual relations with a patient and in that case the court reasoned that you know the patient is the direct victim and so does not need to plead a zone of danger and here in the wrongful birth context the parents are the direct victims the parents in this case specifically went out and to some trouble to make sure they didn't have a genetic cause of this engine and syndrome because they knew that the burden of dealing with one child was great but dealing with two children under this with this condition is exponentially more difficult and so this went to a great deal of trouble to make sure they didn't have this condition then when they they get this child it is literally their worst nightmare an emotional distress is a real thing they experienced so that the negligence went directly from the doctor to the parents and the parents are suffering for it so there's no reason under the corgan reasoning why they have to plead a zone of a i do think that what they say what i was relying on was that it's they they know that in some semitic the majority's mere failure to address the direct victim slash bystander distinction does not amount to an expansion the parents are are bystanders here the parents physically you know walked into a doctor's office and asked ask for this specific advice you know please tell us if this is going to happen again as if it is we're not going to have another baby they're given the wrong advice and then it then they're the worst thing that they can imagine happens and now they suffer for it not just you know as soon as they discovered it but you know in for the rest of their lives and so it's  i think it's a classic common law to work were there is negligence there's proximate cause and there's injury and now there needs to be damages and corgan goes on to say more than one is yeah i think that's right judge if if they do you're considered to be bystanders then we need to plead that they were within the zone of danger which we did and which i believe they were i mean  so if you come to that conclusion you know was there any way in the pleadings what did the plaintiff ever play that their physical injury resulted from the emotional distress well i think that there's parents i think it's an ongoing injury your honor i agree with you it is after the fact but it the the court doesn't end the day the baby is born a tort is going to continue for his whole life and then i mean the damages are going to act well i think that you know i think as judge justice simon pointed out in his sentence him an ak and i think is korean starts to recognize that zone of danger is a legal fiction that  created to avoid situations where people fraudulently try to piggyback on to accidents the best way i can think of is my office overlooks a busy intersection and there's hundreds of people that could be looking out the out the window and see an accident and we can all run down and file lawsuits same were upset by it so the zone of danger all is designed to sort of limit that kind of a problem in the context of a wrongful birth case this is not not even a realistic issue i mean there's not a chance that fraud or or anything like that could come into play here because on there's just one baby and there's two parents and they get they got these medical they got this medical advice i think the courts in the colorado decision when injure and the florida decision push are instructed on this or instructive on this in it you know they just recognize that wrongful birth cases danger but you know i'm being perfectly frank with the court i think that these types of cases just aren't good cookiecutter cases for that type of of you know for the zone of danger rule  so the only other i guess the only other point i'd make is that if the court's interested in the stitch and limitations issue you know it's it was never appealed below it was it was not on a final judgment and u ltimately it's a question of fact for the jury and that is because there's just no question that this family did not know there's a wrongful cause to this until that day when they were advised let me first address the emotional distress issue corgan held in no uncertain terms that wrongful birth plaintiffs are subject to the bystander role and are not direct victims a smelly act and the court expressly rejected it saying that the court had adopted ricky and there was no reason to abandon ricky in the context of a wrongful birth case with respect to the statute of limitations the issue again is not when certainly the parents get got in the case in from baylor on september thirtieth of zero two that the test had come back showing that there was a genetic cause on the angel men's but again absolute certainty or being given a task result is not when it's triggered what was when the statute is triggered what about the procedural situation that's incorrect in the general rule is that you know a reviewing court can affirm a lower court's judgment on any basis properly presented by the record and the appeal  of the dismissal of the complaint under section two six fifteen and for purposes of that particular issue the review in court is limited to the clearings but children's argued in the alternative that the judgment can be  affirmed based on the statue of limitations which is a summary judgment issue you can go outside the pleadings in order to resolve the summary judgment issue and the reviewing how court could have done that and for some reason got caught up on the fact that the trial court had ruled under to six fifteen and concluded that it couldn't then consider evidence outside the record to consider the to determine the the section one thousand five summary judgment as you are now that's incorrect there in that case a woman who had been taking birth control pills experienced leg pain in the doc her doctor kept telling her it's muscular it's muscular don't worry it's muscular and what the court upheld is that the trigger for the of limitations occurred when the plaintiff heard from other women that birth control pills can cause blood clots and as it turned out that's exactly what was happening and so the court rejected the proposition that until the plaintiff found out from a medical doctor that the problem was met was blood clots that's when the statue of limitations is triggered the court held that when the plaintiff heard from others other women that birth control pills could lead to blood clots and she was continuing to suffer this pain and was suspecting that it wasn't muscular at that point there was enough information in the air that she was put on notice that counseling and in fact she was put on notice a month after going to that pediatrician appointment and in august of zero two miss clark started investigating and went to this other doctor and called baylor it's exactly the kind of situation that with the rollins has a paid she was put on notice she didn't think enough of the situation you know what i'm starting to have some doubts about these diagnoses that i got in the past  she was on notice and she took action on that notice which confirms that she was on notice and found out in september of zero four yes yes now i'm certain that my suspicions were  correct but again certainty isn't the trigger point the trigger point is when you start having enough suspicions that you're put on notice that you have a duty of further inquiry and the situation you described here where the doctor was telling her one thing and she was suspecting another thing that's exactly what happened and with her on in with her all the doctor kept telling the plaintiff it's not blood clots it's muscular you don't have blood clots don't worry about it it's not blood clots but the plaintiff knew from other sources that birth control pills could lead to blood clots and the court held that that was sufficient and we have exactly the same situation here in terms of whether parents are direct victims for purposes of the first issue medical and other expenses  that issue we submit has been forfeited it was race for the first time in this court in any event if else on the merits corgan held it in the context of an emotional distress issue that parents are are not direct victims so if they're not directed at them for purposes of negligent infliction of emotional distress damages nor are they nor parents direct victims for purposes of medical and other wrongful births plaintiff's ability to recover post majority damages turns on whether the common law imposes a post majority legal obligation and in illinois the answer is no with respect to the fact that timothy does not have his own cause of action because of the foreclosure of the wrongful life tort again as i mentioned there's no doubt that this is a very sympathetic situation  t we have here but the court is faced with sympathetic situations for which the law does not provide a particular remedy smith versus eli lilly the court held that desire to provide a tort remedy is not a sufficient reason to alter tort law significantly in so many the court how that court should not disregard established principles of tort law some celebs show or outloud in an attempt to reach the right  result and that's exactly what we have here the we have these established principles parents can recover from a third party tortfeasor for medical expenses of an adult child unless there is a legal obligation to cover those expenses  a law provides both common law and statutory that there is no such obligation so however compelling these particular factual circumstances are in order to rule that there is an ability for parent plaintiff to recover post majority expenses the court is going to half the ran the law and create an exception in a band and settle principles for purposes of this case and we submit t ought not to be done the legislature and the question was actually we leave the legislature and the answer is yes it's a many accents so that this this to the extent further damages are a wrongful life a cause of action is sought given this situation which again very difficult moral legal ethical philosophical issues this is precisely the situation where legislative guidance sought before the tour it is taken further than it has been for it in other states because in other states the veld believe post majority damages turns upon whether there is a post majority legal eight six five steps will be taken under