The opinion
2021 IL 126074
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126074)
MONIQUE THOMAS et al., Appellees, v. EDGARD KHOURY, M.D.,
et al., Appellants.
Opinion filed December 16, 2021.
CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with
opinion.
Justices Theis, Neville, Overstreet, and Carter concurred in the judgment and
opinion.
Justice Garman dissented, with opinion, joined by Justice Michael J. Burke.
OPINION
¶1 The circuit court of Cook County certified the following question of law:
“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.”
The appellate court answered the question in the negative. 2020 IL App (1st)
191052. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 Plaintiffs Monique Thomas and Christopher Mitchell brought a wrongful-death
action against defendant doctors Edgard Khoury and Robert Kagan. In their
complaint, plaintiffs allege that defendants negligently failed to recognize that
Thomas was pregnant before performing elective surgery on her and administering
anesthesia, pain medication, and antibiotics. These actions, according to plaintiffs,
“resulted in injury to [the fetus] which was irreversible.” Plaintiffs further allege
that, after the fetus was injured, Thomas was informed by another physician that
the fetus would not survive to term and the pregnancy should therefore be
terminated. Thomas accepted the recommendation and thereafter had a lawful,
consensual abortion. Because the abortion would not have occurred but for
defendants’ negligent conduct and the injuries suffered by the fetus, plaintiffs allege
that defendants’ negligence “ultimately caused the death of” the fetus.
¶4 Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the
Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2018)),
emphasizing the fact that Thomas elected to have an abortion. Defendants maintain
that, even if their actions during the treatment of Thomas were negligent and even
if those actions injured the fetus, they cannot be held liable in a wrongful death
action because the “immediate cause of the fetus’s death” was the abortion, not
their negligent conduct.
¶5 An “immediate cause” or, as it is more commonly known, a “superseding
cause” is a natural force or act of a third party that intervenes between the
defendant’s tortious conduct and the injury at issue to absolve the defendant of
liability. In such a situation, both the tortious aspect of the defendant’s conduct and
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the superseding cause are causes in fact of the injury, but for reasons of fairness,
the defendant’s conduct is no longer considered a legal cause, and the defendant is
absolved of liability. Bentley v. Saunemin Township, 83 Ill. 2d 10, 15 (1980). Not
every intervening force or third-party act amounts to a superseding cause. An
intervening force or act will constitute a superseding cause only when it is both
independent of the defendant’s actions and “so extraordinary as to fall outside of
the class of normal events.” Restatement (Second) of Torts § 443 cmt. b, at 473
(1965); Staub v. Proctor Hospital, 562 U.S. 411, 420 (2011) (a cause is superseding
only if it is of independent origin and was not foreseeable). 74 Am. Jur. 2d Torts
§ 28 (Aug. 2021 Update) (a superseding cause “is a factor of such extraordinary,
unforeseeable nature” that “the original wrongdoer” cannot rightfully be held liable
for the victim’s injuries and is therefore immunized from liability).
¶6 Ordinarily, whether a force of nature or act of a third party amounts to a
superseding cause such that the defendant’s tortious conduct cannot be deemed a
legal cause is a question of fact to be resolved during litigation. Heastie v. Roberts,
226 Ill. 2d 515, 545 (2007) (proximate causation, which consists of both cause in
fact and legal cause, “is ordinarily a question of fact for the jury to decide”). In this
case, however, defendants maintain that plaintiffs’ wrongful-death claim must be
dismissed as a matter of law because of section 2.2 of the Wrongful Death Act (740
ILCS 180/2.2 (West 2018)). Section 2.2 states, in full:
“The state of gestation or development of a human being when an injury is
caused, when an injury takes effect, or at death, shall not foreclose maintenance
of any cause of action under the law of this State arising from the death of a
human being caused by wrongful act, neglect or default.
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. Provided,
however, that a cause of action is not prohibited where the fetus is live-born but
subsequently dies.
There shall be no cause of action against a physician or a medical institution
for the wrongful death of a fetus based on the alleged misconduct of the
physician or medical institution where the defendant did not know and, under
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the applicable standard of good medical care, had no medical reason to know
of the pregnancy of the mother of the fetus.” Id.
¶7 Defendants’ motion to dismiss focuses on the second paragraph of section 2.2
and the language that states “[t]here 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.” Because a lawful abortion took place in this case and because, by definition,
an abortion is always a cause in fact of a fetus’s death, defendants contend that
section 2.2 is “affirmative matter” (735 ILCS 5/2-619(a)(9) (West 2018)) that
defeats plaintiffs’ cause of action. This is so, according to defendants, even though
plaintiffs’ complaint alleges that defendants’ negligence was also a cause in fact of
the fetus’s death. In essence, then, defendants assert that section 2.2 renders a
lawful, consensual abortion a superseding cause as a matter of law, at least where
the defendant in the wrongful death action is “a physician or medical institution.”
¶8 Expressing uncertainty about the meaning of section 2.2 and whether it bars
plaintiffs’ wrongful-death claim, the circuit court denied defendants’ section 2-619
motion but certified the following question under Illinois Supreme Court Rule
308(a) (eff. July 1, 2017):
“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.”
The appellate court allowed defendants’ Rule 308 appeal and answered the certified
question no. 2020 IL App (1st) 191052.
¶9 This court allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Oct. 1, 2019). We also allowed the Illinois Trial Lawyers Association to file
an amicus curiae brief in support of plaintiffs’ position. Ill. S. Ct. R. 345 (eff. Sept.
20, 2010).
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¶ 10 ANALYSIS
¶ 11 The certified question at issue here centers on the proper interpretation of
section 2.2 of the Wrongful Death Act. The cardinal rule of statutory interpretation,
to which all other canons and rules are subordinate, is to ascertain and give effect
to the intent of the legislature. Bayer v. Panduit Corp., 2016 IL 119553, ¶ 18. The
most reliable indicator of legislative intent is the language of the statute, which must
be given its plain and ordinary meaning. Id. The statute must be read as a whole,
with words and phrases considered in context. Id. When interpreting the meaning
of the statutory language, we presume that the legislature did not intend absurdity,
inconvenience, or injustice. Sandholm v. Kueker, 2012 IL 111443, ¶ 41. Our review
is de novo. Id.
¶ 12 There is no dispute the second paragraph of section 2.2 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.
¶ 13 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 long-
standing. 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.
¶ 14 Indeed, such a statement would affirmatively be required because the Wrongful
Death Act is in derogation of the common law. Williams v. Manchester, 228 Ill. 2d
404, 419 (2008). A statute in derogation of the common law is strictly construed,
meaning that common-law principles will not be deemed abrogated by the statute
unless that abrogation is clearly stated. Id. Making a particular type of third-party
act a superseding cause as a matter of law would be a departure from the well-
established, common-law rule that “[p]roximate cause is ordinarily a question of
fact for the jury to decide.” Heastie, 226 Ill. 2d at 545. A strict construction of
section 2.2 would thus require that the Generally Assembly state explicitly that an
abortion is always a superseding cause in every wrongful death action. It did not.
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¶ 15 Further, defendants’ reading of section 2.2 makes little sense. Consider the
following. A pregnant woman in an automobile is negligently struck by a truck,
seriously injuring both the mother and the fetus. Doctors inform the woman that the
fetus will not survive and, further, that she must have an abortion to save her own
life. She then has a lawful, consensual abortion. In this hypothetical, if the driver
of the truck wanted to assert that the abortion was a superseding cause, absolving
him of any liability in a wrongful death action for the death of the fetus, he would
have to litigate the question in court. He could not take advantage of section 2.2
because that provision only prohibits causes of action against “a physician or
medical institution.” However, according to defendants’ reading of the statute, a
physician who injures a fetus through medical malpractice could take advantage of
section 2.2. This interpretation is untenable. Why would the legislature bar the
cause of action against the negligent physician but not the negligent truck driver?
There is no rational justification for this distinction. Indeed, construing section 2.2
as defendants propose would raise a serious question as to whether the granting of
immunity only to the negligent physician amounts to unconstitutional special
legislation. Defendants’ reading of section 2.2 cannot be correct. See, e.g., People
v. Orth, 124 Ill. 2d 326, 334 (1988) (where possible, a statute will be interpreted so
as to avoid an unconstitutional construction).
¶ 16 Finally, if there is any remaining doubt regarding the meaning of section 2.2, it
is conclusively resolved by the legislative history of the provision. Section 2.2
began its legislative life as Senate Bill 756 (81st Ill. Gen. Assem., Senate Bill 756,
1979 Sess.). As originally introduced, Senate Bill 756 contained only the first
paragraph of what was to become section 2.2. The second and third paragraphs
were added later, as an amendment by the House of Representatives. See Miller v.
America Infertility Group of Illinois, S.C., 386 Ill. App. 3d 141, 148-49 (2008).
When the bill returned to the Senate following the amendment, Senator Rhoads
explained the purpose behind the second paragraph:
“Now, there had been concerns expressed over here in the Senate about the
liability of doctors who are [performing] a legal abortion. So, over in the House
in committee the attorneys for the Illinois State Medical Society and the
attorneys of the Americans United for Life agreed upon an amendment which
says that there shall be no cause of action against a physician or medical
institution for wrongful death of the fetus caused by an abortion where the
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abortion was permitted by law, and the requisite consent was lawfully given
***.” (Emphasis added.) 81st Ill. Gen. Assem., Senate Proceedings, June 28,
1979, at 52 (statements of Senator Rhoads).
¶ 17 The second paragraph was added to protect the physician who performs a lawful
abortion from being sued for wrongful death of the fetus. Nothing is said in the
legislative history, at any point, about eliminating liability for other doctors who
tortiously injure a fetus during a different medical procedure and whose tortious
conduct is a but-for cause of a subsequent abortion.
¶ 18 Defendants point to Light v. Proctor Community Hospital, 182 Ill. App. 3d 563,
565 (1989), wherein the appellate court rejected the idea that section 2.2 is intended
to bar actions only against those physicians and medical institutions who perform
an abortion. Light is a brief opinion with very little statutory analysis. The court in
Light did not discuss legal cause or superseding cause, nor did it recognize the
illogic of its construction of section 2.2. The only significant analytical point raised
in Light was that the Wrongful Death Act is in derogation of the common law and
must be strictly constructed. Id. However, as noted previously, a strict construction
of section 2.2 would require the inclusion of language explicitly stating that
abortion is a superseding cause, which is something the General Assembly did not
do. Light’s interpretation of section 2.2 is simply incorrect, and to that extent, Light
is overruled.
¶ 19 When section 2.2 states “[t]here shall be no cause of action against a physician
or a medical institution for the wrongful death of a fetus caused by an abortion,”
the “physician” being referred to is the one who performed the abortion, not another
doctor who injured the fetus during a different medical procedure. Section 2.2 thus
has no application to defendants here. Accordingly, the answer to the certified
question is no.
¶ 20 This is not to say, however, that defendants may not continue to argue in the
circuit court that, under the facts of this case, the abortion of the fetus was a
superseding cause that absolves them of liability in plaintiffs’ cause of action for
wrongful death. They may do so; proximate causation is always part of a wrongful-
death claim. Stanphill v. Ortberg, 2018 IL 122974, ¶ 33. What defendants may not
do is point to section 2.2 and say that, in this statute, the General Assembly has
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declared that an abortion is a superseding cause as a matter of law in all instances
where a defendant physician has injured a fetus in a separate procedure.
¶ 21 In addition, it bears emphasizing that, to prevail on their wrongful-death claim,
plaintiffs must establish that defendants’ negligence caused the fetus to suffer a
concrete injury prior to the abortion, not merely an increased risk of harm. See
Williams, 228 Ill. 2d at 425-26. We further note, however, that this issue has not
yet been litigated and is not properly before us. In the circuit court, defendants
raised section 2.2 as an affirmative matter to defeat plaintiffs’ wrongful-death
claim. Defendants did not file a section 2-615 motion (735 ILCS 5/2-615 (West
2018)) challenging the sufficiency of plaintiffs’ complaint on the grounds that an
injury had not been properly pled. The circuit court has made no ruling on this
question, and of course, plaintiffs have not been afforded the opportunity of any
response. Here, the certified question takes as a given that plaintiffs have properly
alleged that defendants’ negligence caused a concrete injury to the fetus. Having
answered the question with that assumption in place, it remains to be determined
whether plaintiffs have, in fact, properly pled and can prove that injury. We express
no opinion on that issue.
¶ 22 CONCLUSION
¶ 23 The certified question asks whether section 2.2 bars plaintiffs’ cause of action
for wrongful death. The answer to this question is no because section 2.2 addresses
only the liability of the doctor who performs the abortion. The statute does not
address the liability of other physicians and, in particular, does not state that an
abortion is a superseding cause, as a matter of law, in all instances where a
physician tortiously injures a fetus in a separate medical procedure.
¶ 24 Certified question answered.
¶ 25 Appellate court judgment affirmed.
¶ 26 Cause remanded.
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¶ 27 JUSTICE GARMAN, dissenting:
¶ 28 The majority answers the certified question in the negative. Because I believe
the majority’s interpretation and application of the statute to these facts is incorrect,
I respectfully dissent.
¶ 29 The majority states, “The cardinal rule of statutory interpretation, to which all
other canons and rules are subordinate, is to ascertain and give effect to the intent
of the legislature.” Supra ¶ 11. The majority nonetheless fails to abide by, or
otherwise deviates from, this rule.
¶ 30 Plainly ignoring the stated language of the statute—the most reliable indicator
of legislative intent—the majority first holds there is no dispute the second
paragraph of section 2.2 of the Wrongful Death Act (Act) (740 ILCS 180/2.2 (West
2018)) bars a wrongful death action brought against a physician who performs a
lawful, consensual abortion. Further, it states 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.”
(Emphasis in original.) Supra ¶ 13. This is simply incorrect. The second paragraph
of section 2.2 expressly states:
“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.
Provided, however, that a cause of action is not prohibited where the fetus is
live-born but subsequently dies.” (Emphases added.) 740 ILCS 180/2.2 (West
2018).
¶ 31 The majority adds to and subtracts from the words of the legislature to support
its conclusion. Here, the plain language makes no reference to the physician who is
actually performing the abortion. 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. 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. Rather, the
statute focuses on the manner in which the fetus died—an abortion—not what led
to the decision to undergo an abortion. Moreover, while the statute makes no
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reference to a “superseding cause,” the statute clearly expresses the legislative
intent to focus on the cause of the fetal death.
¶ 32 I also cannot agree with the majority’s analysis regarding the interpretation of
a statute in derogation of the common law. Indeed, a statute in derogation of the
common law is to be strictly construed. Yet, the majority fails to do so here. The
majority makes a grand leap to the issue of proximate cause without regard for the
stated question, the stated language of the statute, or the statute’s legislative history.
¶ 33 The opinion errs in focusing on the statute’s lack of language concerning
whether an abortion is always a superseding cause in every wrongful death action.
Moreover, the opinion relies on a poorly constructed and clearly distinguishable
hypothetical to support its questionable analysis. For starters, defendants here are
doctors and consistently held to different standards compared to the hypothetical’s
defendant truck driver. Very clearly, and as the opinion acknowledges, the
defendant truck driver would be unable to avail himself of the protections of section
2.2 because he is not a doctor. This is stating the obvious, as the statute would
simply be inapplicable to the hypothetical and is, thus, irrelevant. Moreover, it is
not the judiciary’s function to question the legislature when it chooses to hold
negligent physicians to higher or lower standards than negligent drivers in varying
scenarios. In fact, our law consistently holds negligent physicians to different
standards than that of other negligent defendants. In a medical malpractice case, a
medical defendant is held to the applicable professional standard of medical care as
determined by the medical community. See Addison v. Whittenberg, 124 Ill. 2d 287,
297 (1988); see also Walski v. Tiesenga, 72 Ill. 2d 249 (1978). A negligent driver,
however, is held to the standard of ordinary care, which is that of a reasonable
person under the attendant circumstances. See Pierson v. Lyon & Healy, 243 Ill.
370, 377 (1909); see also Wilcke v. Henrotin, 241 Ill. 169, 172 (1909). The majority
engages in an apples-to-oranges comparison that is untenable. The opinion’s
analysis and attempt to analogize the hypothetical to this case grossly misconstrue
the statutory language, the facts and arguments, and, frankly, the whole point of
this case.
¶ 34 The focus here is whether defendants may be sued for wrongful death and
whether a death that results from an abortion is a wrongful death. I would answer
both questions in the negative.
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¶ 35 The certified question asks
“[w]hether 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.”
¶ 36 The certified question implicates both the second and third paragraphs of
section 2.2 and entangles the two provisions to create the conundrum presented.
The resolution of the question ultimately turns on whether the second paragraph of
section 2.2 imposes a categorical ban on wrongful death claims against physicians
whenever a lawful abortion with requisite consent occurs.
¶ 37 In interpreting a statute, this court should look to the Act as a whole with the
aim of ascertaining and giving effect to the intent of the legislature. Orlak v. Loyola
University Health System, 228 Ill. 2d 1, 8 (2007) (“In determining the plain
meaning of a statute’s terms, we consider the statute in its entirety, keeping in mind
the subject it addresses, and the apparent intent of the legislature in enacting the
statute.”). Where possible, a court will interpret the language of a statute according
to its plain and ordinary meaning. Id. Where a statute is clear and unambiguous,
this court will enforce the language as written and “will not read into it exceptions,
conditions, or limitations not expressed by the legislature.” In re N.C., 2014 IL
116532, ¶ 50. Moreover, where a statute is in derogation of the common law, such
as the Wrongful Death Act, it must be “ ‘strictly construed and nothing is to be read
into such statutes by intendment or implication.’ ” Williams v. Manchester, 228 Ill.
2d 404, 419 (2008) (quoting Summers v. Summers, 40 Ill. 2d 338, 342 (1968)).
¶ 38 First, the court must determine whether the statute is clear and unambiguous.
To do so, we must consider the stated language of section 2.2 as presented:
“The state of gestation or development of a human being when an injury is
caused, when an injury takes effect, or at death, shall not foreclose maintenance
of any cause of action under the law of this State arising from the death of a
human being caused by wrongful act, neglect or default.
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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. Provided,
however, that a cause of action is not prohibited where the fetus is live-born but
subsequently dies.
There shall be no cause of action against a physician or a medical institution
for the wrongful death of a fetus based on the alleged misconduct of the
physician or medical institution where the defendant did not know and, under
the applicable standard of good medical care, had no medical reason to know
of the pregnancy of the mother of the fetus.” 740 ILCS 180/2.2 (West 2018).
¶ 39 Reading each paragraph in isolation, each paragraph is clear and unambiguous.
By its plain and ordinary language, the second paragraph imposes a categorical ban
on wrongful death actions against a physician or medical institution where the
wrongful death is caused by a lawful and consensual abortion. The third paragraph,
however, bars a cause of action for the wrongful death of a fetus where a physician
or medical institution did not know or, under the applicable standard of care, did
not have a medical reason to know of the pregnancy without mentioning abortion.
In determining how these paragraphs may coexist, we must look to the Act as a
whole.
¶ 40 Section 1 of the Act indicates the Act was meant to serve as the source of the
right to sue, whereas, under the common law, there was no such right. See id. § 1;
see also Williams, 228 Ill. 2d at 418 (“At common law, a cause of action died
concurrently with the death of the injured party, and there was no right of recovery
after the injured person’s death.”). Section 1 states in relevant part:
“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 2018).
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¶ 41 This court has held the “legislature, having conferred a cause of action for
wrongful death, has determined who shall sue and the conditions under which the
suit may be brought.” Williams, 228 Ill. 2d at 420. The Act is viewed 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.’ ” Id. (quoting Pasquale v. Speed
Products Engineering, 166 Ill. 2d 337, 360 (1995)). The Act itself creates a right
of action where one did not otherwise exist.
¶ 42 Viewing the Act as a whole, it is evident the second and third paragraphs create
independent limitations on the right to sue under the Act. Thus, we must also
consider whether the third paragraph creates an additional unequivocal right to, and
thus overcomes any bar on, wrongful death claims regardless of how a fetus died
where a physician or medical institution knew or, under the applicable standard of
care, had reason to know of a plaintiff’s pregnancy.
¶ 43 Plaintiffs posit the third paragraph creates an additional cause of action.
Plaintiffs rely on the legal maxim exceptio probat regulam de rebus non exceptis,
which translates to “An exception proves a rule concerning things not excepted.”
Black’s Law Dictionary 1960 (11th ed. 2019). This principle is useful when
ascertaining the intent of the legislature where the intent is unclear from the
statute’s plain language. Such maxims, however, are applied only when they point
to the intent of the legislature not otherwise ascertained. See generally
Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 153-54 (1997).
¶ 44 The Act itself creates a cause of action for wrongful death, subject to
enumerated exceptions. One such exception is contained in the third paragraph of
section 2.2. Plainly stated, the third paragraph serves as a limitation on the right
created by the Act: there can be no claim for the wrongful death of a fetus against
a physician or medical institution who did not know or, under the applicable
standard of care, did not have medical reason to know of the pregnancy. 740 ILCS
180/2.2 (West 2018).
¶ 45 Plaintiffs allege defendants knew or, under the applicable standard of care, had
medical reason to know of Thomas’s pregnancy. Defendants neither dispute nor
contest whether they knew or had medical reason to know of Thomas’s pregnancy.
Because the third paragraph expressly applies to situations where, under the
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applicable standard of good medical care, a physician did not know or have medical
reason to know of the pregnancy, I would therefore find the third paragraph to be
inapplicable here where plaintiffs allege defendants did have a reason to know of
the pregnancy. Under these facts, there is no need to determine the effect or
meaning of plaintiffs’ proposed inverse interpretation. Contrary to the majority’s
analysis, “[t]here is no rule of construction which allows the court to declare that
the legislature did not mean what the plain language of the statute imports,” “nor is
it necessary for the court to search for any subtle or not readily apparent intention
of the legislature.” People v. Woodard, 175 Ill. 2d 435, 443 (1997). Therefore, we
must read the third paragraph—like any other paragraph contained in the statute—
as stated and not extend, annex, or substitute provisions to create another cause of
action or broaden the scope of the statute. See Belfield v. Coop, 8 Ill. 2d 293, 307
(1956).
¶ 46 Finding the third paragraph to be inapplicable, I now turn to whether plaintiffs’
claim should be barred pursuant to the second paragraph of section 2.2.
¶ 47 Defendants argue the second paragraph creates a categorical ban on wrongful
death actions against physicians whenever an abortion occurs. In this respect,
defendants contend that Light v. Proctor Community Hospital, 182 Ill. App. 3d 563
(1989), is on all fours with the instant case. In that case, the plaintiff underwent a
thyroid scan, and at the time of the procedure, neither she nor the defendant doctor
knew of her pregnancy. Id. at 564. The plaintiff subsequently learned of her
pregnancy and, pursuant to the recommendation of a radiologist, terminated the
pregnancy by way of abortion. Id. at 564-65. The plaintiff filed a negligence claim
against the defendant for failure to determine her pregnancy prior to the scan and
for “failure to warn her that she should not undergo the scan if she were pregnant.”
Id. at 565. The plaintiff subsequently filed an amended complaint wherein she
brought a cause of action on behalf of the unborn fetus for wrongful death pursuant
to the Act. Id. The defendant filed a motion to dismiss, and the trial court dismissed
the counts brought under the Act. Id. On appeal, the appellate court affirmed. Id. at
566.
¶ 48 In support of her wrongful death claim, the plaintiff alleged the defendant’s
negligence was the proximate cause of her unborn fetus’s death and that her
decision to obtain an abortion was a foreseeable result of the defendant’s
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negligence. Id. at 565. The plaintiff further asserted section 2.2 of the Act was only
intended to protect physicians performing abortions, not all physicians whose
negligent acts lead to a wrongful death. Id. In a short opinion, the appellate court
disagreed. The majority considers Light under the lens of whether the case
considered legal or superseding cause and that its only significance is the contention
that the Act is in derogation of the common law. The majority’s contention is a
gross misinterpretation. Light clearly found that, under section 2.2, “the unborn
fetus may not maintain a separate cause of action against the same defendants and
base it upon the same tortious acts which furnish the basis for the plaintiff’s medical
malpractice” claim. Id. at 566. The court reasoned that, while the scan “may have
been a potential increase in risk to the well-being of the fetus,” there was no injury
and the abortion was what terminated the plaintiff’s pregnancy. Id. The majority
unnecessarily and incorrectly diminishes and overturns Light premised on its own
misunderstanding of that case and the instant case.
¶ 49 Critically, in Light, neither fetal predeath injuries nor injuries independent of
the plaintiff’s negligence claim were alleged. Instead, the plaintiff alleged the
wrongful death was caused by an abortion and the abortion was a foreseeable result
of the defendant’s malpractice. Moreover, an increased risk of harm as exhibited in
Light is not a cognizable injury. Williams, 228 Ill. 2d at 425 (“[A]s a matter of law,
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.” (Emphases in original.)). The
allegations in the instant case are different to the extent plaintiffs allege the
wrongful death was caused by injuries resulting from defendants’ wrongful acts,
even though the death itself—not the wrongful death—was effectuated by abortion.
¶ 50 Plaintiffs then directed us to this court’s decision in Williams, where the
plaintiff sustained hip and pelvic fractures resulting from a motor vehicle accident.
Id. at 407-08. At the time of the accident, the plaintiff was pregnant. Id. Upon
examination, physicians informed the plaintiff “ ‘the baby was fine’ ” but her
pregnancy posed obstacles to her own medical treatment. Id. at 408. Physicians
provided the plaintiff with options regarding her own treatment, including pelvis
surgery without the termination of pregnancy, termination of the pregnancy and
post-termination surgery, and delayed surgery until the plaintiff was in her third
trimester or after birth. Id. at 411. Although the plaintiff had a viable pregnancy
that could have gone to term, she ultimately terminated the pregnancy by way of
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lawful and consensual abortion. Id. at 412. The plaintiff then sought recovery for
the death of her unborn fetus pursuant to the Act. Id. The circuit court entered
summary judgment in favor of the defendant driver and dismissed the wrongful
death claim. Id. at 414. The appellate court reversed, but this court vacated the
appellate court’s judgment and affirmed the circuit court’s judgment. Id. at 427.
This court’s decision in Williams unequivocally undermines the majority’s
proposed hypothetical used to support its analysis. This court held:
“[A] wrongful-death action is a statutory, independent cause of action that does
not arise until after death. However, the action is derivative of the injury to the
decedent and is grounded on the same wrongful act of defendant, whether it
was prosecuted by the injured party during his lifetime or by a representative of
the estate. The representative’s right of action depends upon the existence, in
the decedent, at the time of his or her death, of a right of action to recover for
such injury.” Id. at 426.
¶ 51 Defendants assert that Williams, although concerned with the Act, does not
concern itself with the second paragraph of section 2.2, as the plaintiff there did not
raise a claim against a physician or medical institution. Williams nonetheless
provides guidance on interpreting the spirit of the Act and relevant provision: the
decedent, had he or she survived, would have had a cause of action premised on a
defendant’s wrongful act. See id. at 422. Williams demonstrates the allegations of
the complaint must fall within the prescribed requirements necessary to confer the
right of action created by the legislature.
¶ 52 In this case, plaintiffs allege the negligence proximately caused irreversible
injuries that, had the fetus lived, would have permitted an actionable claim.
Consistent with our holding in Williams, where the alleged injury is not the death
itself, the long-standing construction of the Act, from which the majority attempts
to deviate, concerns itself with “ ‘whether an action could have been maintained by
the child, for the injury, had he survived it.’ ” Id. at 424 (quoting City of Chicago
v. Major, 18 Ill. 349, 356 (1857)). It is not a matter of whether the fetus had lived
or died but whether the fetus, had he survived the injury, would have had a cause
of action for the injury that caused his death. What appears to be the source of
confusion is the interpretation of “death” and its ability to trigger a “wrongful
death” action, not “superseding cause.”
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¶ 53 Wrongful death requires fatal injury, not merely a standalone injury and
standalone death. See Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368, 374 (1973)
(“[A] right of action arose from fatal injuries to such a child.”). In Dralle v. Ruder,
124 Ill. 2d 61, 68-69 (1988), this court held that, while in a previous case, a parent
may recover damages for a loss of a child’s society in a wrongful death action, a
parent cannot recover for that same loss resulting from nonfatal injuries. Dralle
reasoned that, when a child is not fatally injured, there is no danger that the injury
caused will go uncompensated, like it would at common law. See id. at 69. The
primary distinction is that, in a wrongful death, the remedy is afforded to the
surviving family members, whereas in a nonfatal injury case, the injured victim
retains his own cause of action against the tortfeasor. Id.
¶ 54 The majority plainly ignores the structure of a wrongful death action. Nonfatal
injuries that lead to the decision to abort do not trigger a wrongful death action.
Surely it is a death, but not a “wrongful” death as defined by the Act. Contrary to
the majority’s analysis, the death here was an effect of the abortion, not the alleged
irreversible injuries stemming from the elective surgeries. Moreover, a lawful and
consensual abortion itself cannot be said to have been an actionable injury to the
fetus under the Act. Instead, plaintiffs fail to allege the negligence caused the death;
rather, “Defendants’ actions resulted in injury to Baby Doe which was irreversible
and led to the need for the termination of the pregnancy.” Similar to Williams, I
would decline to follow plaintiffs’ argument and the majority’s implication that an
undiscernible injury required the abortion. While the fetus may have had an
actionable injury against defendants had he survived the injury, there is no way of
telling whether the fetus would or would not have survived the injuries, if any,
because plaintiffs opted to undergo a lawful and consensual abortion. A party
cannot recover under wrongful death solely because they chose to effectuate the
death necessary to trigger a wrongful death action. While an abortion may cause
the death of an unborn fetus, the Act requires the death to be a result of a wrongful
act.
¶ 55 Because a lawful abortion with requisite consent is not a wrongful act, a death
that results from an abortion is indeed a death, but not a wrongful death. For
example, if a driver is injured—whiplash, cuts, and scrapes—in a rear-end motor
vehicle accident, a tortfeasor could be liable for negligence. If, as a result of that
same motor vehicle accident, the driver bleeds out from his wounds and dies, the
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tortfeasor could be liable for wrongful death. If the driver sustains head trauma and
dies months later from that trauma, the tortfeasor could likewise be liable for
wrongful death. If, however, while in the hospital with head trauma and a good
prognosis, a relative terminates the driver’s medical care to effectuate the driver’s
death in order to pursue a wrongful death action, the tortfeasor is unlikely to be
liable for the wrongful death because, although deceased, the tortfeasor’s wrongful
act did not cause the death. Sure, the tortfeasor’s act may have put the driver in the
hospital, but the act did not effectuate the death. A wrongful death requires the
death in question to be proximately caused by the wrongful act. While I agree with
the majority that the legislature did not expressly state “superseding cause,” I
nonetheless emphasize that the legislature did expressly state that a death be
“caused by” an abortion for section 2.2 to apply.
¶ 56 Light and Williams are examples of what the Act clearly prohibits: causes of
action for wrongful deaths caused by a lawful abortion performed with requisite
consent. Indeed, as defendants assert, had the legislature intended to permit a cause
of action for the wrongful death of a fetus where the alleged negligence proximately
caused the abortion it would have done so explicitly. The Act itself is clear the
decedent must have been able to maintain an independent cause of action had the
death not intervened. Had the fetus been born alive and not succumbed to the
injuries caused by a defendant’s wrongful act(s), the fetus would have had an
actionable injury for which to recover. Instead, the fetus here did not succumb to
the injuries caused by defendant’s wrongful act(s) but rather plaintiff’s choice to
exercise her right to a lawful and consensual abortion. In Light, though the plaintiff
alleged medical negligence that may have produced an increased risk of harm to the
fetus, there is no indication the plaintiff alleged the fetus sustained fatal injuries or
died as a result of something other than the abortion (e.g., radiation exposure) itself.
Likewise, in Williams, though the plaintiff alleged the driver’s negligence led to the
plaintiff’s need for treatment for which her pregnancy posed an obstacle, the
plaintiff did not allege the fetus died as a result of something other than an abortion,
as the facts definitively indicated the fetus suffered no cognizable injury as a result
of the motor vehicle accident.
¶ 57 The second paragraph of the statute expressly limits the right to recover for the
wrongful death of a fetus caused by an abortion. In construing “wrongful death of
a fetus caused by an abortion” where the abortion was lawful and consensual, I
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understand the statutory language to mean just that: a wrongful death caused by an
abortion. To ignore or depart from such critical language would be to ignore
legislative intent. See Solich v. George & Anna Portes Cancer Prevention Center
of Chicago, Inc., 158 Ill. 2d 76, 83 (1994) (stating a court is not at liberty to depart
from the plain language and meaning of the statute by reading into it what the
legislature did not express). Here, the majority does just that.
¶ 58 Even if there was any doubt as to what our lawmakers intended, the legislative
transcripts make clear the provision “assures that in a wrongful death action that
one cannot be brought on behalf of an aborted fetus when the abortion was lawful
and when it was lawfully performed by a doctor.” 81st Ill. Gen. Assem., House
Proceedings, June 21, 1979, at 131 (statements of Representative Cullerton).
¶ 59 Citing only one instance of Senator Rhoads’s commentary, the majority cherry-
picks statements without context and without concern for the long-standing
legislative history of the bill and its amendments, the historical context, or the
progeny of United States Supreme Court cases that led to the change in this law.
¶ 60 Contrary to the majority’s contention, Senator Rhoads tirelessly reiterated that
abortion was not a wrongful death. 81st Ill. Gen. Assem., Senate Proceedings, May
17, 1979, at 166 (statements of Senator Rhoads). Nor could an abortion be a
wrongful death, as the act of obtaining a lawful abortion with requisite consent is
not a wrongful act. In further elaborating, Senator Knupple stated,
“It’s a very…very simple example. If the woman was three months pregnant
she could still have an abortion under the Federal cases and even if she
participated in that abortion, she’d be under the Wrongful…Death Statute in
Illinois foreclosed from recovering because she would have participated in
whatever happened ***.” Id. at 169 (statements of Senator Knupple).
¶ 61 Moreover, while it seems counterintuitive, or in the majority’s view
nonsensical, that the legislature would only limit wrongful death in this context but
not in contexts related to motor vehicle accidents, Senator Knupple went on to
explain, “but if she’s involved in an auto collision and she doesn’t want an abortion
and that child is important to her *** and then she’s involved in an automobile
accident and as a result she inadvertently aborts and it’s somebody else’s fault, she
can recover for it.” Id. at 169-70. The legislature was very clear, precise, and
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meticulous in determining whom and what contexts to exclude from the Act,
especially when operating under the constraints of the then-new Roe line of cases.
See Roe v. Wade, 410 U.S. 113 (1973). By offering protections to physicians and
medical institutions, our lawmakers intended to protect a woman’s right to an
abortion even if that meant limiting a right to recover for wrongful death, albeit a
right unavailable under the common law.
¶ 62 The logic is rather simple and not as convoluted as the majority makes it appear.
A wrongful death requires a wrongful act. A lawful abortion with requisite consent
cannot be a wrongful death because the act of obtaining a lawful and consensual
abortion is not a wrongful act; it is a lawful act effectuating the lawful death of a
fetus. While plaintiffs argue this construction may lead to absurd results and the
majority agrees, our legislature thought it to prevent absurd results. Looking at the
legislative history we can clearly see these provisions were meant to fill in the gaps
and protect a woman’s right to make her own decisions about reproductive health
and comport with Roe. This was also meant to protect physicians so as to not, in
some roundabout way, deter or criminalize a physician for performing or
participating in an abortion.
“The [Act] itself makes a wrongful death action possible for a fetus that is
wrongfully killed and the point of the Amendment is only to say that that [Act]
should not be understood to include fetus[es] who are killed as a result of a
lawfully performed abortion. It’s really a technical Amendment that makes it
clear that the intent of the [Act] is not to do anything that’s contrary to the legal
standing of lawfully performed abortions.
***
*** [W]e’ve a responsibility to make it quite clear that this [Act] is not
intended to undercut the current federal case law *** with respect to lawfully
performed abortions.” (Emphasis added.) 81st Ill. Gen. Assem., House
Proceedings, June 15, 1979, at 36-37 (statements of Representative Currie).
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¶ 63 The legislature was clear that its intention behind the subject provisions was to
consolidate Illinois case law and comport with the United States Supreme Court’s
decision in Roe. 1
¶ 64 The majority improperly holds section 2.2 only applies to the physician
performing the abortion. The majority’s contention is unequivocally incorrect and
wholly rebutted by the legislative history. While the majority relies on Senator
Rhoads’s statements to support its position, it deliberately ignores and turns a blind
eye to Senator Rhoads’s commentary that completely and expressly undermines the
majority’s assertion: “This is not an abortion bill. It *** isn’t aimed at a doctor who
lawfully performs an abortion ***.” (Emphasis added.) 81st Ill. Gen. Assem.,
Senate Proceedings, May 17, 1979, at 170 (statements of Senator Rhoads). The
statute, although it concerns abortion, is not an abortion statute. It merely provides
an exclusion to the Wrongful Death Act.
¶ 65 Even if I were to interpret the statute to mean that the referenced physician is
the physician performing the abortion in clear contravention of our lawmakers’
statements, there could still be no cause of action for wrongful death when a lawful
abortion with requisite consent occurs. The legislature was clear, in consolidating
this court’s precedent, that a lawful and consensual abortion is not a wrongful death.
Nor could it be, because in an effort to protect a woman’s right to make reproductive
health decisions under the Roe line of cases, the legislature could not promulgate
laws that interfered or could interfere with abortion. In a difficult balancing act, the
legislature chose to limit recovery in wrongful death actions in favor of access to
abortion. While the majority is focused on recovering for wrongful death in the
instant context, this court dealt with, and our lawmakers foresaw, other issues such
as women undergoing lawful and consensual abortions only to have the mothers
and doctors be sued by a spouse, coparent, or other relative for the abortion death
1
Chrisafogeorgis, 55 Ill. 2d 368 (holding a wrongful death action exists for the death of a child
stillborn after his mother was injured), is an example of the case law that promulgated the relevant
statutory language, including the limited exception in the second paragraph, which states
“[t]here 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. Provided, however, that a cause of action is not
prohibited where the fetus is live-born but subsequently dies.” (Emphasis added.) (740 ILCS
180/2.2 (West 2018)).
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of the unborn fetus. The primary purpose here was to ensure physicians, regardless
of whether they were the ones performing the abortion, would not be held liable or
be deterred in any way from performing abortions, recommending abortions, or
participating in abortions out of fear of liability at a time when abortion was such a
sensitive topic. See People v. Greer, 79 Ill. 2d 103, 115 (1980) (noting the
intentional performance of an abortion of a viable fetus was a Class 2 felony even
if the abortion itself killed the fetus).
¶ 66 Finally, regarding causation, whether a wrongful death was actually caused by
an act other than an abortion is an inquiry into proximate cause and a question for
the trier of fact, not this court. See Peach v. McGovern, 2019 IL 123156, ¶ 53. In
ruling on a motion to dismiss pursuant to section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2018)), however, this court takes the
allegations as true to determine whether, as pled, plaintiffs’ cause of action may
proceed. Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 44.
Plaintiffs allege that the fetus sustained irreversible injuries caused by defendants’
medical misconduct and, as a result of those injuries, plaintiff made the decision to
terminate the pregnancy. Having no other allegations that even remotely suggest
the alleged wrongful death of Baby Doe was caused by something other than a
lawful and consensual abortion, I find the allegations insufficient and would
therefore find the second paragraph bars plaintiffs’ claims as alleged under the Act.
¶ 67 While a truly unfortunate case, our legislature did not leave us without remedy.
Senator Rhoads made clear that, while a wrongful death action cannot be pursued
under the statute, this does not preclude a plaintiff from recovering under other
claims. 81st Ill. Gen. Assem., Senate Proceedings, June 28, 1979, at 53 (statements
of Senator Rhoads) (“Now, you certainly can still go after them under malpractice
or negligence or any of those types of cause of action.”). Here, plaintiff brought a
multicount complaint. Although the wrongful death count was dismissed, other
claims remain viable. Nonetheless, this matter is a rather straightforward issue of
statutory interpretation. The certified question ultimately turns on whether the
second paragraph serves as a categorical ban on wrongful death actions against
physicians when a plaintiff chooses to undergo a lawful and consensual abortion.
In my view, it does.
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¶ 68 The majority erred in its analysis, application, and overall interpretation of the
facts and law in this case. Ultimately, I would answer the question in the affirmative
and remand the cause to the circuit court for further proceedings on the remaining
counts. Thus, based on the foregoing reasons I cannot join the majority opinion and,
therefore, respectfully dissent.
¶ 69 JUSTICE MICHAEL J. BURKE joins in this dissent.
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