Posted on 04/03/2020 10:01:14 PM PDT by Morgana
A wrongful death case against a surgeon can proceed on behalf of an aborted fetus, a state appeals panel ruled on Tuesday.
The mother of the fetus, Monique Thomas, underwent elective surgery in March 2016 after telling her doctors she was “potentially pregnant.” After the surgery, the pregnancy was confirmed, but the surgical drugs resulted in a nonviable fetus.
Thomas and the fetus’s father, Christopher Mitchell, opted to abort the pregnancy. Then they brought a wrongful death lawsuit against the doctors, Edgard Khoury and Robert Kagan.
Cook County Circuit Judge John H. Ehrlich denied the defendants motion to dismiss, but certified a question for the appellate court to answer: “Whether section 2.2 of the Wrongful Death Act, 740 ILCS 180/2.2, bars a cause of action against a defendant physician or medical institution 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.”
Writing for the three-justice panel, Justice Michael B. Hyman wrote that the wrongful death case can move forward after interpreting how two consecutive paragraphs in the Wrongful Death Act work together.
“We hold that the wrongful death action may proceed,” Hyman wrote. “Although the cause of the death, in a literal sense, was the abortion (second paragraph), the decision to abort or not arose out of defendants’ alleged medical misconduct (third paragraph) when they knew and, ‘under the applicable standard of good medical care, had medical reason to know of the pregnancy.’ The second and third paragraphs appear in section 2.2 as independent paragraphs, and under the facts here, the second paragraph does not nullify (or provide an impediment for bringing) the cause of action.”
The second paragraph of section 2.2 prohibits causes of action when a legal abortion caused fetal death, while the third paragraph authorizes causes of action based on a doctor’s alleged misconduct if they knew of the pregnancy — regardless of how the fetus died.
Before the surgery at Alexian Brothers Medical Center, hospital staff took urine and blood samples that showed elevated levels of human chorionic gonadotropin, a hormone that increases during pregnancy. An ultrasound didn’t indicate a pregnancy, but Hyman wrote that pregnancies earlier than four weeks don’t consistently appear on ultrasounds. The doctors concluded Thomas wasn’t pregnant and performed the surgery using general anesthesia.
After the surgery, Thomas went to the emergency room at Advocate Lutheran General Hospital in Park Ridge to treat an infection, and she received painkillers and antibiotics. At this point, her pregnancy was confirmed and she chose to undergo an abortion.
Thomas’ lawsuit alleged the doctors deviated from the standard of care owed to her by misleading her about her pregnancy given her blood and urine results. She added a separate wrongful death count for the fetus, “Baby Doe.”
Ehrlich ruled the Wrongful Death Act doesn’t address the specific scenario in Thomas’ case, denied the motion to dismiss and certified the question for interlocutory appeal.
The 1st District justices turned to the plain wording of the statute to determine if the adjacent paragraphs were at odds with each other.
“The language of the second paragraph bars a cause of action against a physician or medical institution for the wrongful death of a fetus ‘caused by’ a legal and consensual abortion,” Hyman wrote. “Coming after the second paragraph’s incorporation of ‘caused by,’ the language of the third paragraph bars a cause of action where the defendants did not know and ‘under the applicable standard of good medical care, had no medical reason to know’ of the patient’s pregnancy. … These paragraphs stand independent of one another, each a separate limitation on causes of action against physicians and medical institutions.”
The third paragraph doesn’t bar the claim because the law allows for causes of action when the plaintiff can show an actionable injury to the fetus, Hyman wrote, regardless of the “ultimate cause of death.”
“A wrongful death action derives from the injury to the decedent and turns on the same wrongful act of defendant, whether prosecuted by the injured party during his or her lifetime or by a representative of his or her estate. … The representative’s right of action depends on the existence, in the decedent at the time of death, of a right of action to recover for the injury,” Hyman wrote.
To rule that the cause of action would be barred would create an affirmative defense, the justices found. That would allow medical professionals to “deflect allegations of medical malpractice whenever an abortion follows alleged medical misconduct that injures a fetus and they knew and, under the applicable standard of good medical care, had medical reason to know of the pregnancy,” Hyman wrote.
Justices John C. Griffin and Carl Anthony Walker concurred in the opinion.
The case is Monique Thomas, et al., v. Edgard Khoury, M.D., et al., 2020 IL App (1st) 191052.
Thomas and Mitchell were represented on appeal by Edward K. Grassé of Busse Busse & Grassé P.C. They could not be reached for comment.
The doctors were represented by Karen Kies DeGrand and Laura Coffey Ieremia of Donohue Brown Mathewson & Smyth LLC, Mary Kay Scott and Austin C. Monroe of Brenner Monroe Scott & Anderson Ltd., and Michael Tarpey and Richard D. DeJong of Hall Prangle & Schoonveld LLC. They could not be reached for comment.
What am I reading?
Tomorrow morning, make yourself a pot of coffee, and read the article a third time.
Regards,
She is after money.
She aborted the kid without evidence that the surgery would have harmed him. Now, if she had an ultrasound that showed abnormalities she would have a case.
But if she had shown high gonadotropins, the docs should have postponed elective surgery... it sounds like she may have been only 1or 2 weeks pregnant...
But not enough details to judge
“Tomorrow morning, make yourself a pot of coffee, and read the article a third time.
Regards, “
The wisdom of FReepers knows no bounds.
General anesthesia really needs to be monitored closely when administered to someone who is pregnant; and it had better be necessary. I wager she probably was handled like any other patient.
She did, ultimately, consent to surgery. It’s possible that she was told it’s no big deal, and went ahead thinking there should be no problems. However, I’m sure we don’t have all of the details. She was still in her first or two month of her first trimester, and it’s hard to get quality ultrasounds that early in.
Being familiar with Alexian, I can tell you that their track record isn’t the best
Yeah, sometimes I do amaze even myself.
Regards,
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