Illinois Supreme Court Permits Fetal Wrongful Death Claims Against Physicians Where The Death Resulted From A Subsequent Lawful Abortion

by Scott R. Shinkan

The Illinois Supreme Court held in Thomas v. Khory, M.D. et al., 2021 IL 126074, that section 2.2 of the Wrongful Death Act, 740 ILCS 180/2.2, does not bar parents from pursuing a wrongful death claim against a physician when the alleged malpractice resulted in a non-viable fetus that died as a result of a subsequent lawful abortion. 

Facts

The defendant physicians performed an elective surgery on the plaintiff pregnant mother, administering medications that allegedly resulted in irreversible injury to the fetus. After the alleged injury, another physician informed the parents that the fetus would not survive to term and recommended that the pregnancy be terminated. The parents accepted, and a consensual abortion was performed. The parents filed suit and alleged that the abortion would not have occurred but for the defendants’ negligence that caused injury to the fetus, and that the negligence ultimately caused the death of the fetus.

Defendants moved to dismiss, arguing that sec. 2.2 of the Wrongful Death Act, 740 ILCS 180/2.2, barred plaintiffs’ claim as a matter of law, and further, that the consensual abortion was a “superseding cause” as a matter of law for which they could not be held liable. Sec. 2.2 states in pertinent part:

. . . [¶2] There shall be no cause of action against a physician or a medical institution for the wrongful death of a fetus caused by an abortion where the abortion was permitted by law and the requisite consent was lawfully given. . . .

[¶3] There shall be no cause of action against a physician or a medical institution for the wrongful death of a fetus based on the alleged misconduct of the physician or medical institution where the defendant did not know and, under the applicable standard of good medical care, had no medical reason to know of the pregnancy of the mother of the fetus.

Analysis 

The Court held that sec. 2.2 of the Wrongful Death Act did not bar the lawsuit. The Court noted that the second paragraph said nothing about barring a wrongful death action against “another” physician, i.e., a physician who injures a fetus during a procedure entirely separate from an abortion, and it said nothing about an abortion being a superseding cause. Further, if the second paragraph applied to physicians in all circumstances, it would unfairly, and possibly unconstitutionally, favor physicians over other persons. For example, it would not bar a lawsuit against a truck driver who caused injury to a fetus in an auto accident, where the mother had a subsequent lawful, consensual abortion to save her own life. Finally, the Court cited legislative history that the second paragraph was added to protect physicians performing lawful abortions—not to protect doctors who allegedly injure a fetus during a procedure, causing a subsequent abortion.

Learning Points: The Illinois Supreme Court overruled a longstanding opinion, Light v. Proctor Community Hospital, 182 Ill.App.3d 583 (1989), which has been utilized by defendants for decades to bar claims against physicians for fetal injury where there was a subsequent abortion. Light is no longer good law.

Plaintiffs in these circumstances must still adequately plead and prove causation. Plaintiffs must establish that the defendants’ negligence caused the fetus to suffer a concrete injury prior to the abortion, not merely an increased risk of harm. The Thomas dissent noted that it would have found the pleading to be insufficient on causation. This leaves open the possibility of motion to dismiss for failure to plead a concrete injury and causation. Defendants should likewise consider whether the 2-622 report of reviewing healthcare physician required by Illinois law is sufficient.  Finally, the Court did not believe that the legislature intended abortion to be a superseding cause as a matter of law in all instances where a physician tortiously injures a fetus in a separate medical procedure. However, the Court did not hold that abortion is not a superseding cause in these circumstances. Abortion as a superseding cause should be raised at all stages, and if the case proceeds to trial, a sole proximate cause jury instruction should be considered.