Forthenberry v. Franciscan Sisters Health Care Corp.

• Decision Date: 11 June 1987
• Docket Number: No. 4-86-0654,4-86-0654
• Citation: 108 Ill.Dec. 740,156 Ill.App.3d 634,509 N.E.2d 166
• Parties: , 108 Ill.Dec. 740 Johnnie Lee FORTHENBERRY, individually, on behalf of himself, on behalf of Mary Louise Jackson, and on behalf of Exavier Lee Jackson, and as Special Administrator of the Estate of Claudine Jackson, Deceased, Plaintiff-Appellant, v. FRANCISCAN SISTERS HEALTH CARE CORPORATION, a/k/a St. Elizabeth's Hospital in Danville, Dr. Suketu Jhaveri, Michael Olsen, C.R.N.A., and William M. Grant, S.C., a medical corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 166

509 N.E.2d 166

156 Ill.App.3d 634, 108 Ill.Dec. 740

Johnnie Lee FORTHENBERRY, individually, on behalf of himself, on behalf of Mary Louise Jackson, and on behalf of Exavier Lee Jackson, and as Special Administrator of the Estate of Claudine Jackson, Deceased, Plaintiff-Appellant, v. FRANCISCAN SISTERS HEALTH CARE CORPORATION, a/k/a St Elizabeth's Hospital in Danville, Dr. Suketu Jhaveri Michael Olsen, C.R.N.A., and William M. Grant, S.C., a medical corporation, Defendants-Appellees.

No. 4-86-0654.

Appellate Court of Illinois Fourth District.

June 11, 1987.

Michael A. Wozniak, Manion, Janov, Edgar, Devens & Fahey, Ltd., Hoopeston, Thomas J. Mellen III, Danville, for plaintiff-appellant.

Richard F. Record, Jr., Richard C. Hayden, Kenneth D. Peters, Craig & Craig, Mattoon, for Olsen & Grant.

Richard R. Harden, William J. Brinkmann, Thomas, Mamer & Haughey, Champaign, for Dr. Jhaveri.

Clare E. Connor, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for St. Elizabeth's.

Justice STOUDER delivered the Opinion of the court:

Plaintiff, Johnnie Lee Forthenberry, appeals from the judgment of the Circuit Court of Vermilion County dismissing him and Mary Louise Jackson as plaintiffs in a wrongful death action. Forthenberry and Jackson were the parents of the unmarried, minor-decedent, Claudine Jackson. Claudine gave birth prior to her death and a wrongful death action alleging medical malpractice was filed on behalf of the infant, Exavier Lee Jackson, and the parents. The suit named Franciscan Sisters Health Care Corporation, d/b/a St. Elizabeth's Hospital, Dr. Suketu Jhaveri, Michael Olsen, and William Grant as the defendants. On defendants' motion to dismiss, the trial court dismissed that portion of the plaintiff's claim on behalf of himself and Mary Louise Jackson on the basis that only the newborn infant was a proper party-plaintiff under the language of the Illinois Wrongful Death Act. Ill.Rev.Stat.1985, ch. 70, par. 1 et seq.

During the course of the delivery of the newborn infant by cesarean section, complications arose and Claudine eventually died. Forthenberry filed a complaint alleging medical and hospital malpractice against the defendants on behalf of himself, his wife, and the infant and as administrator of Claudine's estate. Each of the Counts of the complaint sought recovery pursuant to the Illinois Wrongful Death Act. Each Count also named Forthenberry, Mary Louise Jackson, and the infant as next of kin. The ruling on defendants motion to dismiss, which was final as to Forthenberry and Mary Louise, contained a finding pursuant to the provisions of Supreme Court Rule 304(a), Ill.Rev.Stat.1985, Ch. 110A, par. 304(a), making it immediately appealable.

At the outset of this appeal, we must note that the issue we deal with today is not the scope of damages in a wrongful death action, but rather who may sue and under what conditions. Because no cause of action for wrongful death existed at common law, the Wrongful Death Act is the source for determining who may sue and under what conditions. (In re Estate of Edwards (1982), 106 Ill.App.3d 635, 62 Ill.Dec. 407, 435 N.E.2d 1379.) This also brings to our attention the rule of statutory construction that statutes in derogation of the common law are to be strictly construed and nothing is to be read into such statutes by intendment or implication. Summers v. Summers (1968), 40 Ill.2d 338, 239 N.E.2d 795.

Forthenberry contends that there is a recent trend in the law in Illinois which calls for a reversal of the trial court's judgment in this case. He cites the cases of Bullard v. Barnes (1984), 102 Ill.2d 505, 82 Ill.Dec. 448, 468 N.E.2d 1228, and Cockrum v. Baumgartner (1983), 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, for the proposition that the Illinois Supreme Court has joined the modern trend in permitting parents to recover for the loss of a child's society in wrongful death actions. This is a correct assessment of the law in Illinois; however, those cases address the scope of damages in cases in which the parents were proper plaintiffs in cases filed pursuant to the Wrongful Death Act. The issue in those cases was whether loss of society could be deemed a pecuniary injury which would be compensible under the Act. This presents us with a similar argument as that propounded by the decedent's parents in the case of Rodgers v. Consolidated Railroad Corporation (1985), 136...