Illinois Supreme Court Allows Wrongful Death Action to Continue for Fetal Death When Doctors Were Aware of the Pregnancy

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.

The Illinois Supreme Court answered “no” to the certified question. Section 2.2 of the Wrongful Death Act provides that no cause of action is permitted against a physician for the wrongful death of a fetus caused by a lawful and consensual abortion.

However, in this case, the doctors argued that the cause of the fetus’s death was the abortion and therefore, Section 2.2 bars the action.

Interpreting the statute, the Supreme Court rejected this claim. Section 2.2 of the Wrongful Death Act is designed to protect physicians who perform lawful and consensual abortions from wrongful death lawsuits. However, the law is not designed to offer immunity to physicians who committed malpractice, causing a fetal injury and a subsequent consensual abortion. Just because plaintiffs consented to an abortion following the alleged medical malpractice does not absolve the doctors from liability under the Illinois Wrongful Death Act.

Thomas v. Khoury, 2021 IL 126074 (Dec. 16, 2021).

Kreisman Law Offices has been handling birth injury lawsuits, obstetrician negligence lawsuits, traumatic brain injury lawsuits, cerebral palsy lawsuits, hospital negligence cases, wrongful death lawsuits, and medical malpractice cases 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 45 years in and around Chicago, Cook County and its surrounding areas, including North Riverside, Park Forest, Park Ridge, Franklin Park, Elk Grove Village, Schiller Park, Rolling Meadows, Lake Zurich, Crystal Lake, Round Lake Beach, River Forest, Oak Lawn, Bedford Park, Chicago (West Lawn, Brighton Park, Back of the Yards, Grand Boulevard, Jackson Park, South Shore, Avalon Park, Calumet Heights, Douglas, Armour Square, East Pilsen, West Loop, Ukrainian Village, Hermosa, Belmont Gardens, Irving Park, Roscoe Village, Budlong, Edison Park), Des Plaines, Niles, Northfield and Glenview, Ill.

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

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