Articles Posted in Wrongful Death

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Ms. Doe required cervical cerclage to address cervical insufficiency during previous pregnancies. She consulted a maternal-fetal medicine specialist during the 12th week of her fourth pregnancy. After an evaluation, the doctor allegedly offered numerous treatment options to Ms. Doe.

When Ms. Doe returned four weeks later, her cervix measured 23 millimeters. She requested a cervical cerclage given her condition. The cervix measured 20.1 millimeters when another specialist evaluated her less than a week later. In another week, the treating physician scheduled the cerclage.

While Ms. Doe was on her way to the procedure, her cervix failed. She went into labor. Her child was born at approximately 18-weeks gestation and died within an hour of his birth. Ms. Doe sued the two doctors alleging they chose not to perform a timely cervical cerclage. Ms. Doe asserted that the first doctor specialist should have ensured the procedure was performed within four days as Ms. Doe had requested and that the second specialist should have admitted Ms. Doe to the hospital for an urgent cerclage. None of that was done.
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On Dec. 16, 2021, the Illinois Supreme Court answered a certified question about whether a doctor who injured a fetus can be sued for wrongful death if the patient later consented to an abortion given the condition of the unborn fetus.

Thomas and Mitchell sued two doctors, Drs. Khoury and Kagan, for the wrongful death of their unborn child. The plaintiffs alleged that the doctors committed malpractice, which injured the fetus. This action later resulted in the plaintiffs agreeing to an abortion.

The trial court submitted a certified question to the Illinois Appellate Court asking whether the Illinois Wrongful Death Act bars the plaintiffs’ lawsuit.
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Ms. Doe presented in active labor on an evening to Providence Regional Medical Center’s Pavilion for Women and Children. Ms. Doe, whose full-term baby was healthy at the time of her admission, was administered Pitocin and remained in labor throughout the night.

The next morning at around 5 a.m., significant signs of fetal distress occurred, including prolonged decelerations. Nurses informed the on-duty obstetrician, who was in surgery with another patient. The doctor ordered an operating room be opened for Ms. Doe.

Approximately three hours later, Ms. Doe’s daughter was delivered by cesarean section; the procedure was performed by a different obstetrician. The baby was diagnosed as having hypoxic-ischemic brain damage and — tragically — died just nine days later. The baby was survived by Ms. Doe, the baby’s mother, and her husband.
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At three different obstetrics appointments during the 37th and 38th week of pregnancy, Ms. Doe’s blood pressure readings showed hypertension. When she returned for another appointment toward the end of her 38th week, she had severe hypertension and decreased fetal movement.

Ms. Doe was sent to a hospital where the fetal heart monitor showed the fetal heart rate of 140 beats per minute, minimal to absent variability, and late decelerations.

The attending obstetrician ordered diagnostic testing and then attended to another patient. By the time Ms. Doe underwent a Cesarean section about two hours later, the fetal heart rate had dropped to zero.
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Monique Thomas and Christopher Mitchell sought damages in a lawsuit alleging that Dr. Edgard Khoury and Dr. Robert Kagan caused the wrongful death of their fetus from injuries suffered during an elective surgery performed on Thomas. A pregnancy test before the surgery alerted the doctors that Thomas was “potentially pregnant.”

After an inconclusive ultrasound, defendant physicians proceeded with the surgery. A short time later, the pregnancy was confirmed. As a result of the drugs that were used and the procedures in this surgery, they asserted the fetus was exposed to health risks that resulted in a nonviable fetus. Mitchell and Thomas then had to decide whether to terminate the pregnancy. They decided on ending the pregnancy by an abortion following which Thomas and Mitchell sought damages in this lawsuit alleging the surgery injured the fetus, leading to the wrongful death.

In denying defendants’ motion to dismiss pursuant to Section 2-619(a)(9) of the Illinois Code of Civil Procedure, the trial court found a substantial ground for difference of opinion after the scope and application of the second and third paragraphs of Section 2.2 of the Wrongful Death Act (740 ILCS 180/2.2), and certified this question:
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Karla Fountaine received prenatal care from a general practitioner, the defendant Dr. Cheryl Gill. At the time, she was 34 years old. During her pregnancy, she developed gestational diabetes.

When she began bleeding and suffering from increased blood pressure and headache, she was admitted to a hospital but shortly thereafter she was sent home. At 34 weeks gestation, she was readmitted to the hospital with continuing headaches and spiking blood pressure. She passed out in the hospital. An obstetrician delivered her baby.

Fountains suffered brain damage and subsequently died after the birth of her child. She was a former auto worker who had been retraining for another position. She was survived by her husband, an infant son and two other minor children.
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Andrew and Marni Hotchkiss, a couple in their 30s, were struggling with infertility. They consulted an obstetrician and infertility physician, Dr. Siu Ng-Wagner. The couple and the doctor agreed to use a gestational carrier. As the Hotchkiss family selected potential surrogates online, the couple sent these candidates to Dr. Ng-Wagner for medical screening. Dr. Ng-Wagner subsequently interviewed Christina Jensen and told the Hotchkiss family that everything was “all clear.”

Jensen delivered the Hotchkiss’s baby at 25 weeks gestation after developing pre-eclampsia during the pregnancy. The newborn child developed sepsis and died just 3 weeks after birth.
The Hotchkisses filed a lawsuit against Dr. Ng-Wagner and her medical practice claiming that she chose not to review Jensen’s medical records before recommending her as a suitable surrogate.

This would have revealed Jensen’s history of pre-eclampsia in her pregnancy the year before the Hotchkiss’s baby’s birth. The plaintiffs also argued that Dr. Ng-Wagner had a duty to inform the Hotchkisses that she had not reviewed Jensen’s records before clearing her to be named a surrogate.
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Carol and Keith Klaine filed a medical malpractice lawsuit against Frederick Dressen D.O. and Southern Illinois Medical Services d/b/a The Center for Medical Arts. In an amended complaint, the plaintiffs added a party defendant, Southern Illinois Hospital Services d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale (SIHS), for negligent credentialing of Dr. Dressen.

In the discovery process, SIHS provided over 1,700 pages of documents. However, SIHS refused to provide certain documents, which it listed in a privilege log, as required by Illinois Supreme Court Rule 201(n), asserting that the withheld documents were privileged pursuant to, inter alia, the Medical Studies Act (735 ILCS 5/8-2101) and the Healthcare Professional Credentials Data Collection Act (Credentials Act) (410 ILCS 517/1 et seq.).

The plaintiff moved the court to review the SIHS excluded documents that it claimed were privileged for an in-camera review. After reviewing the documents, the circuit court judge agreed with SIHS that all of the documents were privileged, with the exception of those documents contained in “Group Exhibit B,” “Group Exhibit F” and “Group Exhibit J.”

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Most recently, I have heard from mothers who have tragically lost a full-term baby for inexplicable reasons. In one particular case, the mother called me to talk about why her full-term child died in utero. She said that all of her prenatal care was uneventful. In fact, just 3 days before her due date, her doctor and staff did a final checkup on both her and her unborn child. Both were well.

This mother was 38 years old and had been trying for a full-term delivery with her husband for 7 years. She had been pregnant only once before but miscarried early in that pregnancy. Other than her somewhat advanced years, she had no known risks.

Yet when this mother called her doctor to say that the baby was not active, now just 2 days before her due date, the doctor discounted the alarm and told the mother that maybe she was in the early stages of labor. Instead, the mother’s blood pressure had actually become dangerously elevated,  which put the baby at risk.

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On Sept. 17, 2009 Crystal McFadden was admitted to Northwestern Memorial Hospital in full-term labor. Her care was managed by a team of resident obstetricians under the direction of the defendant, Dr. Jeffrey Dungan, the supervising attending obstetrician.

During the course of her labor, the residents and nursing staff documented late and variable decelerations on the fetal heart monitor with periods of minimal or undetectable variability, but they described the fetal heart tracings as being reassuring overall.

Around 3 a.m. on Sept. 18, 2009, after McFadden had been trying to push for 1.5 hours, the fetal heart tracings became non-reassuring and the senior obstetrician resident called Dr. Dungan to perform delivery. By then the baby’s head was crowning, so the delivery was accomplished with a vacuum extractor. However, the infant was born with no signs of life. The neonatologist in the delivery room stated that the baby appeared to be hydropic with generalized swelling, ascites (accumulation of fluid in the peritoneal cavity), and pleural effusion.

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