A Chicago appeals court has ruled the parents of an aborted fetus may use the Illinois Wrongful Death Act to sue two suburban doctors, whom the parents alleged performed an operation on the pregnant mother that malformed the fetus, leaving the parents with no choice but to abort.
The March 31 ruling was penned by Justice Michael Hyman, with concurrence from Justice John Griffin and Justice Carl Walker, of Illinois First District Appellate Court.
"Although the cause of the death, in a literal sense, was the abortion, the decision to abort or not arose out of defendants’ alleged medical misconduct," Hyman found.
The ruling favored Monique Thomas and Christopher Mitchell in their wrongful death suit against Dr. Edgard Khoury and Dr. Robert Kagan, of Alexian Brothers Medical Center in Elk Grove Village. The suit was filed in 2018 in Cook County Circuit Court.
Thomas underwent elective surgery in 2016 at Alexian Brothers. Standard pre-surgical blood and urine tests indicated Thomas could be pregnant, the suit said. An ultrasound was inconclusive, but did not rule out a pregnancy of less than four weeks. Thomas was told she was not with child. The surgery went ahead, with Kagan operating and Khoury administering anesthesia, according to the suit.
Thomas was indeed pregnant, but the anesthesia and drugs given her in connection with the surgery malformed her fetus, making it "nonviable," according to the suit. Given the fetus' condition, Thomas had an abortion.
The parents then sued the doctors under the Illinois Wrongful Death Act, alleging the doctors should have known Thomas was pregnant and the operation and attendant treatment would endanger the fetus.
The circuit judge handling the case, John Ehrlich, said it was not clear whether the Act allows suits against physicians on this basis, prompting the doctors to ask the appellate court to decide.
"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," Justice Hyman determined.
Hyman continued, saying, "Our interpretation of the statute gives Thomas the opportunity to plead and attempt to prove medical malpractice that injured the fetus without regard to the death ultimately having been through an abortion. To find otherwise would enable physicians and medical institutions to deflect allegations of medical malpractice whenever an abortion follows alleged medical misconduct that injures a fetus and they knew and, under the applicable standard of good medical care, had medical reason to know of the pregnancy."
The case was remanded for further proceedings.
The parents are represented by attorney Edward K. Grasse, with the firm of Busse, Busse & Grasse, of Chicago.
Kagan and Khoury are defended by attorneys with the firms of Donohue Brown Mathewson & Smyth; Brenner, Monroe, Scott & Anderson; and Hall Prangle & Schoonveld, all of Chicago.