Illinois Appellate Court Rules that the Wrongful Death Act Did Not Bar Cause of Action or Recovery Against Physician and Medical Institution in Fetal Death

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:

“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 Illinois Appellate Court stated that the question posed to it asked for an interpretation of the second paragraph in Section 2.2, which bars a cause of action when a legal abortion with proper consent caused fetal death, and the third paragraph, which authorizes a cause of action, regardless of how the fetus died, based on the alleged misconduct of the physician or a medical institution who knew, or had a medical reason to know, of the pregnancy. Id.

The appellate court held that the wrongful death action may proceed. Although the cause of the death, in a literal sense, was the abortion (second paragraph), the decision to abort or not arose out of defendants’ alleged medical misconduct (third paragraph) when they knew and, “under the applicable standard of good medical care, had medical reason to know of the pregnancy.” The second and third paragraphs appear in Section 2.2 as independent paragraphs, and under the facts here, the second paragraph does not nullify (or provide an impediment for bringing) the cause of action.

This case is about a March 18, 2016 admission at Alexian Brothers Medical Center for Thomas for “elective surgery.” Standard pre-surgical testing of urine and blood sample showed an elevated human chorionic gonadotropin (hCG), a potential indication of pregnancy. An ultrasound did not definitively show an intra-uterine pregnancy, although it could have been consistent with a pregnancy of less than four weeks. The doctors told Thomas that she was not pregnant. Dr. Kagan performed the surgery with Dr. Khoury administering general anesthesia.

(Plaintiffs voluntarily dismissed Alexian Brothers Medical Center as a defendant.)

After surgery, Thomas came to the emergency room at Advocate Lutheran General Hospital for treatment of an infection and received both analgesics for pain and antibiotics for the infection. Her pregnancy was then confirmed. The effects of anesthesia and other medications given before and during the infection-related surgery brought about the disturbing malformations in the fetus. Given a choice, Thomas terminated the pregnancy and had an abortion.

In this appellate opinion, the appeals panel stated that the merits of the claims have no relevance to the determination. In other words, the appellate was limited to interpreting Section 2.2 in this interlocutory appeal.

In conclusion, the Illinois Appellate Court answered the interlocutory appeal question no to the certified questions that asked whether Section 2.2 of the Wrongful Death Act bars a cause of action or recovery under the Act “against the 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.” Accordingly, the certified question being answered no, the case was remanded for further disposition and trial to the Circuit Court of Cook County, Ill.

Thomas v. Khoury, 2020 IL App (1st) 191052 (March 31, 2020).

Kreisman Law Offices has been handling birth trauma injury lawsuits, wrongful death cases, labor and delivery negligence lawsuits, brain injury cases and medical malpractice lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Wheaton, Downers Grove, Burr Ridge, Bartlett, Bensenville, Bolingbrook, Calumet City, Deerfield, Elmhurst, Winnetka, Chicago (Logan Square, Bucktown, West Rogers Park, North Lawndale, Austin, East Side, South Shore, Bronzeville, Andersonville, Uptown, Albany Park),Waukegan, Joliet, Aurora, Homewood, Highwood, and Lincolnwood, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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