Thomas v. Khoury
| Decision Date | 16 December 2021 |
| Docket Number | Docket No. 126074 |
| Citation | 2021 IL 126074,190 N.E.3d 245,454 Ill.Dec. 645 |
| Parties | Monique THOMAS et al., Appellees, v. Edgard KHOURY, M.D., et al., Appellants. |
| Court | Illinois Supreme Court |
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 T. Tarpey, Hugh C. Griffin, and Richard D. DeJong, of Hall Prangle & Schoonveld, LLC, all of Chicago, for appellants.
Edward K. Grasse and Christopher D. Willis, of Grasse Legal, LLC, of Schaumburg, for appellees.
Richard J. Rosenblum, of MDR Law, LLC, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
¶ 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, 445 Ill.Dec. 411, 166 N.E.3d 841. For the reasons that follow, we affirm.
¶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 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, 46 Ill.Dec. 129, 413 N.E.2d 1242 (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, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011) (). 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, 315 Ill.Dec. 735, 877 N.E.2d 1064 (2007) (). 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:
¶ 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, 445 Ill.Dec. 411, 166 N.E.3d 841.
¶ 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).
¶ 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, 407 Ill.Dec. 458, 63 N.E.3d 890. 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. Kuecker , 2012 IL 111443, ¶ 41, 356 Ill.Dec. 733, 962 N.E.2d 418. 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, 320 Ill.Dec. 784, 888 N.E.2d 1 (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...
To continue reading
Request your trial
-
Soucek v. Breath of Life Prof'l Servs.
...believed furthered the intent of the statute. However, a statute in derogation of the common law is to be strictly construed. Thomas v. Khoury , 2021 IL 126074, ¶ 14, 454 Ill.Dec. 645, 190 N.E.3d 245. Defendants’ concession that the adults at issue here do not "fit" the plain language of th......