A divided Illinois Supreme Court has ruled doctors may be liable for injuring a fetus in the womb, if the mother claims the fetal injuries left her no choice but to abort the fetus.
In the 5-2 decision, a majority on the state high court decided the parents of an aborted fetus may use the Illinois Wrongful Death Act to sue two suburban doctors, who performed an operation on the pregnant mother that allegedly malformed the fetus, which the mother said forced her to have an abortion to end the pregnancy.
Dissenting justices, however, said there can be no "wrongful death" lawsuit over a fetal death, when the cause of that death is a lawful abortion, carried out with the consent of the mother.
The majority view, issued Dec. 16, was written by Chief Justice Anne Burke, with concurrence from Justices Mary Jane Theis, Robert Carter, David Overstreet and P. Scott Neville Jr.
The ruling favored plaintiffs Monique Thomas and Christopher Mitchell in their wrongful death suit against physicians Edgard Khoury and 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 tests indicated Thomas could be pregnant, but an ultrasound was inconclusive, the suit said. 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 sued the doctors under the Illinois Wrongful Death Act, alleging the doctors should have known Thomas was pregnant and the operation would endanger the fetus.
Cook County Circuit Judge John Ehrlich said it was not clear whether the law allows suits against physicians on this basis, prompting the doctors to ask Illinois First District Appellate Court to decide. In spring 2020, the court ruled unanimously the Act could be used to sue doctors under such circumstances.
The Illinois Supreme Court then reviewed the matter.
Chief Justice Burke agreed with the appeals panel, in her four-page decision.
The Act "says nothing about barring a wrongful death action against another physician, that is, a physician who injures a fetus during a procedure that is entirely separate from an abortion. Nor does it say anything about abortions being a superseding cause," Burke concluded.
Burke added: "Nothing is said in the legislative history, at any point, about eliminating liability for other doctors who tortiously injure a fetus during a different medical procedure and whose tortious conduct is a but-for cause of a subsequent abortion."
Burke pointed out the defendants' view of the Act leads to the question whether giving immunity to a negligent doctor "amounts to unconstitutional special legislation."
In Burke's view, the parents must show negligence caused the fetus to suffer an "concrete" injury before the abortion, rather than merely an increased risk, in order to win their case.
Justice Garman determined Burke got it all wrong, penning a 14-page dissent, joined by Justice Michael Burke, who is no relation to the court's chief justice.
Garman said the cause of the fetus' death was the abortion, not the surgery that allegedly injured the fetus.
"Wrongful death requires fatal injury, not merely a standalone injury and standalone death," Garman said.
Garman continued, "The majority plainly ignores the structure of a wrongful death action. Nonfatal injuries that lead to the decision to abort do not trigger a wrongful death action. Surely it is a death, but not a 'wrongful' death as defined by the Act. Contrary to the majority’s analysis, the death here was an effect of the abortion, not the alleged irreversible injuries stemming from the elective surgeries."
Garman went on to say Chief Justice Burke overly complicated the issue.
"The logic is rather simple and not as convoluted as the majority makes it appear. A wrongful death requires a wrongful act. A lawful abortion with requisite consent cannot be a wrongful death because the act of obtaining a lawful and consensual abortion is not a wrongful act," Garman said.
Garman also observed, "The majority adds to and subtracts from the words of the legislature to support its conclusion."
The parents were represented before the high court by Edward K. Grasse, of the Schaumburg firm of Grasse Legal.
Kagan and Khoury were represented by Karen DeGrand, of the Chicago firm of Donohue Brown Mathewson & Smythe.