In its opinion filed on March 31, 2020, the Appellate Court of Illinois First District First Division (“”Illinois Appellate Court”) stated, “we answer no to the certified question that asked whether section 2.2 of the Wrongful Death Act bars a cause of action or recovery under the act “against a defendant physician or medical institution for fetal death if the defendant knew or had a medical reason to know of the pregnancy and the alleged malpractice resulted in a non-viable fetus that died as a result of a lawful abortion with requisite consent.””
Illinois Wrongful Death Act, 740 ILCS 180/2.2
Wrongful Death Act, 740 ILCS 180/2.2 states, in part:
“There shall be no cause of action against a physician or a medical institution for the wrongful death of a fetus caused by an abortion where the abortion was permitted by law and the requisite consent was lawfully given. Provided, however, that a cause of action is not prohibited where the fetus is live-born but subsequently dies.”
“There shall be no cause of action against a physician or a medical institution for the wrongful death of a fetus based on the alleged misconduct of the physician or medical institution where the defendant did not know and, under the applicable standard of good medical care, had no medical reason to know of the pregnancy of the mother of the fetus.”
The second paragraph in section 2.2 (the first paragraph quoted above) bars a cause of action when a legal abortion with proper consent caused fetal death, and the third paragraph (the second paragraph above) authorizes a cause of action, regardless of how the fetus died, based on the alleged misconduct of a physician or a medical institution who knew, or had a medical reason to know, of the pregnancy.
The trial court in the present case found the statute does not address whether a cause of action for fetal death is barred where the defendant knew and had medical reason to know of the pregnancy and the defendant’s alleged misconduct serves as the basis for causing a lawful abortion conducted with requisite consent. The trial court therefore submitted to the Illinois Appellate Court the certified question whether the statute contained a “seeming” internal inconsistency that bars this lawsuit.
The certified question before the Illinois Appellate Court stated: “Whether section 2.2 of the Wrongful Death Act, 740 ILCS 180/2.2, bars a cause of action against a defendant physician or medical institution for fetal death if the defendant knew or had a medical reason to know of the pregnancy and the alleged malpractice resulted in a non-viable fetus that died as a result of a lawful abortion with requisite consent.”
The Underlying Facts
The plaintiffs alleged in their lawsuit against two doctors that the defendants caused the wrongful death of their fetus from injury suffered during elective surgery on one of the plaintiffs (“Thomas”). Pregnancy testing before the surgery alerted the doctors that Thomas was “potentially pregnant.” After an inconclusive ultrasound, defendants proceeded with the surgery. A short time later, the pregnancy was confirmed. Because drugs and procedures had exposed the fetus to health risks that resulted in a nonviable fetus, the plaintiffs had to decide whether to terminate the pregnancy. They decided on an abortion. They then sought damages alleging the surgery injured the fetus leading to the wrongful death.
Illinois Appellate Court Opinion
The Illinois Appellate Court held, “We find the third paragraph does not bar a claim for wrongful death based on negligent medical care under the facts alleged in the first amended complaint. The Wrongful Death Act allows for a wrongful death action where a plaintiff can establish an actionable injury to the fetus without regard to an abortion being the ultimate cause of death.”
Source Thomas v. Khoury, 2020 IL App (1st) 191052.
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