CHICAGO (Legal Newsline) – A woman who had elective surgery while in the early stages of pregnancy can use Illinois’ Wrongful Death Act to sue over the abortion she had after anesthesia malformed the fetus.
Blood work before the surgery showed there was a possibility Monique Thomas was pregnant, but doctors carried out the procedure. She was administered anesthesia, pain medication and antibiotics, resulting in irreversible injury to the fetus.
Defendants argued they couldn’t be sued for the wrongful death of a fetus they didn’t kill, considering Thomas had an abortion. But appeals courts in the state have twice ruled against them, noting Thomas was told by one doctor that the fetus would not survive to term.
“There is no dispute the second paragraph of section 2.2 (of the Wrongful Death Act) bars a wrongful death action brought against a physician who performs a lawful, consensual abortion. Defendants contend, however, that section 2.2 goes beyond this and that the provision also renders a lawful, consensual abortion a superseding cause as a matter of law whenever the defendant in the wrongful death action is ‘a physician or medical institution.’ We disagree,” Chief Justice Ann Burke wrote.
“Section 2.2 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.
“The principle of superseding cause is familiar and longstanding. Had the General Assembly intended that an abortion would always be a superseding cause in a wrongful death action it would have said so, explicitly.”
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 Robert Kagan operating and Edgard Khoury administering anesthesia, according to the suit.
Justice Rita Garman dissented, arguing the majority misreads the plain language of the WDA.
“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,” the law says.
Garman said the majority adds to and subtracts words from the law to reach its conclusion.
“Instead, the language is clear that a wrongful death action cannot be brought against a physician, or any physician, for wrongful death of a fetus caused by an abortion,” Garman wrote.
“The statute is devoid of any language or indication that the physician in question must have been the performing physician, which, as later discussed, is clearly rebutted by the legislative history."