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With a lengthy dissent by Justice Garman, the Illinois Supreme Court recently addressed the proper interpretation of section 2.2 of the Wrongful Death Act and answered the following certified question in the negative, allowing plaintiffs to pursue their medical malpractice claim:

“Whether section 2.2 of the Wrongful Death Act, 740 ILCS 180/2.2, bars a cause of action against a defendant for fetal death if the defendant knew or had a medical reason to know of the pregnancy and the alleged malpractice resulted in a non-viable fetus that died as a result of a lawful abortion with requisite consent.”

In Thomas v. Khoury, 2021 IL 126074 (December 16, 2021), plaintiffs, the parents, brought a wrongful death suit against defendant doctors, alleging that they negligently failed to recognize that the woman was pregnant before performing elective surgery on her and administering anesthesia, pain medications, and antibiotics. Defendants’ actions allegedly resulted in an irreversible injury to the fetus, where it would not survive to term, and the pregnancy should therefore be terminated. The woman elected to have a lawful, consensual abortion. Plaintiffs allege that defendants’ negligence “ultimately caused the death of” the fetus because the abortion would not have occurred but for the doctors’ negligent conduct. Defendants moved to dismiss pursuant to section 2-619(a)(9), emphasizing that the woman elected to have an abortion, and even if their treatment was negligent, the immediate cause of the fetus’s death was the abortion, not their negligent conduct.

The Court did not dispute that the second paragraph of section 2.2 of the Wrongful Death Act bars a wrongful death action against a physician who performs a lawful, consensual abortion; however, the Court holds that section 2.2 has no application to the defendants here, because the physician being referred to in the statute is the one who actually performs the abortion, not another doctor who injures the fetus during a different medical procedure. Thus, section 2.2 says nothing about barring a wrongful death action against another physician who injures a fetus during a procedure entirely separate from an abortion or if the abortion is a superseding cause.

This decision expands the section 2.2 of the Wrongful Death Act, allowing medical malpractice claims to be pursued against physicians other than the ones who perform abortions. In addition, this decision is a stark reminder that health care professionals should conduct thorough medical evaluations of all patients prior to any surgical procedures.

To read the Supreme Court ruling, please click here.

Thanks to Law Clerk, Madeline C. Grubbe, for her research and editorial assistance with developing this analysis.