The First District Appellate Court issued a recent decision addressing whether a pregnant woman, who is compelled to abort her fetus because of a possible injury to the fetus caused by a doctor’s negligence, can sue the doctor for the injury and death of her unborn child even though she elected to have the abortion.
The First District answered in the affirmative and ruled that the woman’s claims against the doctor for the wrongful death of the unborn fetus could proceed under Illinois’ Wrongful Death Act.
In Thomas v. Khoury, Monique Thomas was admitted to the hospital for elective surgery and during presurgical testing, her urine and blood samples displayed elevated levels of hCG, which is a potential indicator of pregnancy. An ultrasound failed to definitively show the pregnancy even though it was consistent with a pregnancy of fewer than four weeks. The surgeon told Thomas not to worry about the test results and that she was not pregnant. Thereafter, Thomas proceeded with the surgery under general anesthesia.
Thomas subsequently visited the emergency room at another hospital for treatment related to an infection. At this time, the pregnancy was confirmed by the hospital and Thomas was advised that the general anesthesia and medications she received during and after her surgery could potentially result in malformation of the unborn fetus. Thomas chose to have an abortion and terminated the pregnancy. Thomas then filed suit against the surgeon alleging that the surgeon knew of the pregnancy and the surgery injured the fetus leading to the wrongful death.
To determine whether Thomas had a viable claim against the surgeon, the First District was required to analyze two paragraphs of Section 2.2 of the Wrongful Death Act. The second and third paragraphs of Section 2.2 provide their own independent limitations on actions against doctors.
The second paragraph of Section 2.2 bars actions against doctors for the wrongful death of a fetus caused by a legal and consensual abortion. At first blush, it would appear that this paragraph would prevent Thomas from pursuing her malpractice claims against the surgeon given that she had consented to the abortion. The third paragraph of Section 2.2 bars actions for the wrongful death of a fetus where the doctor did not know and had no reason to know of the mother’s pregnancy.
The Court held that Thomas’ claims were not barred by the second paragraph and could proceed under the third paragraph because the third paragraph does not bar claims where it is alleged that the doctor knew or had reason to know of the pregnancy. The Court reasoned that to find otherwise would allow doctors to hide behind a consensual and lawful abortion that was the result of their own negligence in failing to disclose the pregnancy to the mother.
This case demonstrates the intricacies of Illinois’ Wrongful Death Act. The attorneys at The Collins Law Firm are well-versed in handling these types of issues and are available to discuss the options you have in pursuing a claim against a negligent third-party.
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