Personal Injury Update: Illinois Supreme Court Rejects Wrongful Death Claims of Aborted Fetus Following Auto Accident

Attorneys: Guolee, Terrence F.

On April 3, 2008, the Illinois Supreme Court released its decision in the closely watched case Williams v. Manchester, No. 104524 ( Ill. S. Ct. April 3, 2008). Justice Freeman's opinion provides an interesting overview of statutory construction of the Illinois Wrongful Death Act, as well as insight into the court's rejection of claims based on expected or possible future injuries pled without the existence of current injury.
The Williams case involved the tragic claims that plaintiff, Michelle Williams, brought in the circuit court of Cook County against defendant, John Manchester, seeking damages for the death of her unborn child, Baby Doe. In summary, plaintiff claimed she was forced to request the abortion of her unborn baby due to complications and risks caused during an auto accident resulting from Manchester's negligence. In lower courts, the circuit court entered summary judgment in favor of defendant on the claim, but a divided panel of the First District Appellate Court reversed. Williams, 372 Ill. App. 3d at 211.
In October 2002, plaintiff was 10-1/2 weeks pregnant with Baby Doe, and she had been aware of her pregnancy for approximately one month. Plaintiff had planned to carry Baby Doe to term, and plaintiff and the child's father were preparing for the birth. However, on October 15, 2002, plaintiff was a passenger in her car that collided with defendant's when defendant allegedly negligently turned left in plaintiff's path, causing the driver's side of defendant's vehicle to crash into plaintiff's automobile.
The impact of the crash caused plaintiff's forehead to break through the windshield and required her extraction from the car by responding firemen. Once transported to a hospital, plaintiff and Baby Doe's father met with a team of physicians and discussed her condition and treatment options. The physicians informed plaintiff that she did not suffer a spontaneous abortion and that the baby itself was not injured in the collision; rather, "the baby was fine."
However, the physicians also informed plaintiff that she had suffered a broken hip and pelvis and that there was a potential she would not be able to hold the baby. Likewise, she was told that if she chose to stay pregnant, she would need to stay bedridden and would need to have her bones broken again to set them following the delivery and would likely never again walk properly. Moreover, plaintiff testified that the doctors advised her that they could not promise "with x-rays and all that that [sic] the baby would even be okay."
A high-risk obstetrician-gynecologist consulting on plaintiff's care was of the opinion that plaintiff had a viable pregnancy that could have gone to term. However, he added that there were both short and long-term risks to plaintiff and the fetus from the needed drug and radiation exposure and the pelvic fractures. The short-term risks would be mainly an increased risk of thrombosis, embolism and blood clots. The long-term risks included that the longer plaintiff waited to repair the hip, the worse her outcome would be. Thus, the obstetrician opined that there were "risks involved to the mother and the fetus of continuing the pregnancy."
Concerning the risks to the fetus, the obstetrician explained that radiation exposure may cause organs to develop incorrectly, existing organs to grow and mature incorrectly, and an increased risk of childhood and adult malignancies. However, the obstetrician also recognized that Baby Doe would not inevitably have had problems because of the radiation to which it was exposed. Also, he could not opine whether Baby Doe would have had problems even with additional radiation exposure throughout the pregnancy, and stated that he himself had plenty of patients who had exposure to radiation and delivered perfectly healthy babies.
Following consultation with other treaters, the obstetrician discerned four options for plaintiff's care: (1) immediate pelvis surgery without termination of pregnancy; (2) immediate termination of pregnancy and, post-recovery, pelvis surgery; (3) delayed pelvis surgery until second trimester of pregnancy; and (4) delayed pelvis surgery until plaintiff gave birth. Essentially, it was agreed that the longer plaintiff delayed pelvis surgery, the worse her long-term outcome would be. Following a long discussion with plaintiff and her husband, the family decided to proceed with an abortion, which was performed a week after the accident. Plaintiff's pelvis surgery was then performed another week later.
Plaintiff then filed a three-count complaint alleging that defendant's negligence proximately caused the automobile collision. In addition to seeking damages for her own injuries, plaintiff, as administrator of the estate of Baby Doe, brought an action pursuant to the Wrongful Death Act (740 ILCS 180/1 (West 2002)). Plaintiff alleged that she was pregnant with Baby Doe, and that defendant's negligence proximately caused the collision, "ultimately causing" Baby Doe's death. Plaintiff sought damages for injuries to herself and Baby Doe's father as next of kin. In her third claim, plaintiff sought damages for defendant's alleged negligent infliction of emotional distress. Defendant filed an answer denying all material allegations.
Following completion of discovery, defendant moved for summary judgment on plaintiff's claims for wrongful death and negligent infliction of emotional distress. Regarding the wrongful death claim, defendant argued that the accident, x-ray, or any other potential risk to the fetus was not the proximate cause of the fetus' death. Rather, defendant argued that Baby Doe's death was the result of plaintiff's voluntary decision to terminate the pregnancy, which plaintiff chose so that she could proceed with the pelvic surgery, "despite being provided options that would have allowed her to postpone surgery and forego termination of the pregnancy."
In response, plaintiff contended that defendant's negligence was the "cause in fact" of Baby Doe's wrongful death because "but for the defendant's negligence the termination [of the pregnancy] would not have occurred," and plaintiff's decision to terminate the pregnancy "was a foreseeable result of the defendant's negligence."
The circuit court entered summary judgment in favor of defendant on the wrongful death claim, finding that, based on the express language of the Wrongful Death Act, Plaintiff could not maintain a cause of action on behalf of her fetus as the Act does not take into consideration the reasonable foreseeability of an injury or death, but, rather, focuses primarily on whether a defendant's conduct actually caused the injury or death. The circuit court then concluded that plaintiff's termination of her pregnancy was the actual cause of Baby Doe's death, and defendant's alleged negligence did not cause any injury or death to Baby Doe, as required by the Wrongful Death Act.
Shortly after this ruling, plaintiff added a survival claim (Count IV), in which plaintiff, as administrator of Baby Doe's estate, sought damages for injuries to Baby Doe, "including radiation and medication exposure," as a result of defendant's negligence. Defendant moved for summary judgment. In her response, plaintiff relied on the obstetrician's testimony and also attached an affidavit from a radiologist stating that plaintiff received a CAT scan and pelvic x-rays and, consequently, was exposed to radiation. Based on this, he opined: that Baby Doe's radiation exposure "prior to the pregnancy termination *** produced an increased risk of future injury to the fetus, specifically neural tube deformity." Nevertheless, the circuit court granted defendant's motion for summary judgment on this claim, finding the record did not contain any "quantifiable evidence" that the fetus was actually damaged from the radiation exposure. The court also found that the claim that the fetus may have been at risk for future deformities was "purely speculative," and held that "a risk of injury does not equate to an actual injury."
A divided panel of the appellate court, however, reversed the summary judgment in favor of defendant on plaintiff's wrongful death claim. 372 Ill. App. 3d 211. In particular, the court noted that it would not be unforeseeable that a pregnant woman, injured through a person's negligence, would agree to endure the medical consequences to herself, or the fetus for that matter, regardless of their severity, simply for the sake of maintaining the pregnancy. The court further held that, given the risks and alternatives communicated to plaintiff by her physicians, and the legality and availability of the choice she made, the foreseeability of that choice must be determined by a jury and not by a judge as a matter of law.
However, the appellate court affirmed the summary judgment in favor of defendant on the survival count. The court found that even an increased risk of future harm cannot legally constitute a present injury, recognizing that a valid cause of action must generally include both injury and damages.

Justice Cahill dissented on the ruling on the wrongful death claim. He disagreed that the controlling analysis should be grounded in general tort principles surrounding proximate cause. Rather, he opined that the court "must decide, as a matter of law, whether the language of the Wrongful Death Act permits a cause of action based on the facts of this case." Id. at 249 (Cahill, J., dissenting). Accepting that Baby Doe was a "person" within the meaning of the Wrongful Death Act, Justice Cahill reasoned that "there can be no cause of action for wrongful death. Had the fetus not been aborted, there is no way of knowing under the facts of this case whether the fetus had suffered an actionable injury before death."
The Illinois Supreme Court then noted that the matter was before it on the appellate court's reversal of the grant of summary judgment in favor of defendant on plaintiff's wrongful death claim pursuant to the Wrongful Death Act (740 ILCS 180/0.01 (West 2002)). On this, the court noted that the appellate court majority, even when prompted by the dissent, failed to apprehend the statutory nature of a wrongful death action.
On this, the Supreme Court noted that, at common law, a cause of action died with the death of the injured party, and there was no right of recovery after the injured person's death. Also, there was no cause of action to recover damages for the death of another by wrongful act, negligence, or default. Thus, the court noted that at common law, "[t]he result was that it was cheaper for the defendant to kill the plaintiff than to injure him, and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy." Citing, W. Keeton, Prosser & Keeton on Torts §127, at 945 (5th ed. 1984).
To remedy that seeming injustice, in 1853, the Illinois General Assembly enacted the Injuries Act (1853 Ill. Laws 97), now known as the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2002)). Section 1 of the Act continues to read, as it did when enacted, as follows:
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. 740 ILCS 180/1 (West 2002).
The court then noted the law of statutory construction that a statute in derogation of the common law cannot be construed as changing the common law beyond what the statutory language expresses or is necessarily implied from what is expressed. Indeed, the court noted that "statutes in derogation of common law are to be strictly construed and nothing is to be read into such statutes by intendment or implication."
Per the court, the Wrongful Death Act permits a recovery for the death of an individual by wrongful act, neglect, or default, where none existed at common law. "The Act is viewed, traditionally, as creating the cause of action, which must be brought in the name of the representative, for the pecuniary losses which a surviving spouse and next of kin may have sustained by reason of the death of the injured person." The court then noted that, because this is a statutory action, where the right is conditional, the plaintiff must bring the case clearly within the prescribed requirements necessary to confer the right of action and that the Act "should be strictly construed."
Based on this statutory construction, the court noted that:
[O]ur cases have consistently interpreted the Wrongful Death Act to require, as a condition for maintaining a wrongful death action, that the decedent have been able to bring, at the time of his death, an action for damages resulting from the occurrence. Thus, in a variety of contexts, our court has referred to the rule that a wrongful death action is barred if the decedent, at the time of death, would not have been able to pursue an action for personal injuries.
Thus, if the decedent had no right of action at the time of his or her death, the personal representative has none under the Wrongful Death Act. The "injury" that the personal representative alleges caused the decedent's death must be the same "injury" that the decedent suffered prior to his or her death. Further, "in disallowing wrongful death actions when the decedent could not have maintained a claim for personal injuries at the time of death, the Act attaches no significance to the particular reason why the decedent's claim would have been barred." Based on this, the Court noted that review of the statutory construction reveals that it is an injury to decedent that confers the right of action in the first place.
The court then considered what was - and was not - the actionable injury in this case. On this, the court noted that, on a certain level, any death, by itself, creates a loss to the decedent's next of kin. However, a wrongful death action is premised on the deceased's potential, at the time of death, to bring an action for injury. Thus, the court reasoned that it was "not until the death occurred could the court examine whether there was a viable wrongful injury which would permit the case to proceed."
Having determined that Baby Doe's death itself is not the actionable injury in this case, the court held that its longstanding construction of section 1 of the Act "refers us at once to the inquiry, whether an action could have been maintained by the child, for the injury, had he survived it." Thus, the court reasoned that Baby Doe could not have maintained a claim for personal injury against defendant based on the automobile collision itself, noting that the treating physicians conceded that that Baby Doe was not injured in the collision and that plaintiff had a viable pregnancy that could have gone to term.
The court likewise noted that plaintiff herself conceded in pleadings that she "never claimed that Baby Doe received injuries in the actual crash but rather that they occurred in the hospital following the crash" and that in argument before the court it was expressly conceded by plaintiff that, for purposes of summary judgment, the record did not contain sufficient evidence that Baby Doe suffered a present, actionable injury as a result of the radiation exposure.
The court then addressed plaintiff's remaining contention that Baby Doe's radiation exposure created an increased risk of future harm and that "an increased risk of future harm is a present injury" for which the fetus could have brought an action for damages against defendant. The court rejected this argument for two reasons. First, it held that an increased risk of future harm is an element of damages that can be recovered for a present injury - it is not the injury itself. Second, even if the court were to recognize a claim for "increased risk of future harm as a present injury," plaintiff had not presented any evidence that Baby Doe was injured as a result of the increased risk. In this respect, the court noted that, in the context of Baby Doe's survival claim, the appellate court found that plaintiff failed to present any evidence of damages and that there can be no legal injury without damages.
Not only is this decision important in that it addresses the potential claims of fetuses involved in accidents, but it also sets out a framework whereby wrongful death claims can be contested based on arguments that the actual cause of death was an intervening act, rather than the original injury caused by the defendant, or based on the argument that the defendant's alleged negligence caused no underlying injury itself. Likewise, the decision further clarifies that claims based on potential or threatened future injuries will not survive in Illinois.

* * *

Terrence Guolee, a shareholder in our Chicago office and a member of our Commercial Litigation practice group, has successfully represented defendants, plaintiffs and carriers in dozens of complex, multi-million dollar claims covering a wide area of facts and law. If you have any questions regarding this article, please feel free to contact Terrence via This email address is being protected from spambots. You need JavaScript enabled to view it., or via 312-540-7544.

Nike LunarEpic Low FlyknitRunning sports | Air Jordan Release Dates 2021 + 2022 Updated , Ietp