Williams v. Manchester, 1-05-2126.
| Court | United States Appellate Court of Illinois |
| Citation | 864 N.E.2d 963 |
| Docket Number | No. 1-05-2126.,1-05-2126. |
| Parties | Michelle WILLIAMS, Individually and as Special Administrator of the Estate of Baby Doe, Deceased, Plaintiff-Appellant, v. John C. MANCHESTER, Defendant-Appellee. |
| Decision Date | 16 March 2007 |
v.
John C. MANCHESTER, Defendant-Appellee.
[864 N.E.2d 966]
Justice JOSEPH GORDON delivered the opinion of the court:
This is an appeal pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) by plaintiff, Michelle Williams, individually, and as special administrator of the estate of Baby Doe, from the grant of summary judgment, on certain counts of her complaint for her own and Baby Doe's personal injuries, to defendant, John C. Manchester. Specifically, Williams contends that the circuit court erred when it granted summary judgment to Manchester on her claim under the Wrongful Death Act (740 ILCS 180/1 (West 2002)) for Baby Doe's death which came about after she terminated her pregnancy as a result, she contends, of injuries Manchester caused. Williams further contends that the court erred in granting summary judgment to Manchester on her claim for Baby Doe under the Survival Act (755 ILCS 5/27-6 (West 2002)). For the following reasons, we reverse the grant of summary judgment to Manchester on the wrongful death count, but affirm the grant of summary judgment on the survival count.
On January 22, 2003, Williams filed a three-count complaint in the circuit court. The complaint alleged that she was a passenger in a car struck by Manchester's car on October 15, 2002, at the intersection of Montrose and Western Avenues in Chicago. Among other acts of negligence causing the collision, plaintiff alleged that Manchester failed to yield the right-of-way and turned left in front of the car in which Williams rode when it was unsafe to do so.
In the first count of the complaint, Williams sought recovery for her own injuries on account of Manchester's alleged negligence. In the second count, Williams alleged that she was carrying a child who ultimately died as a result of the collision caused by Manchester and sought to recover for her child's wrongful death as administrator of Baby Doe's estate. Finally, in the third count, Williams, pleading for herself and Baby Doe, sought recovery for Manchester's alleged negligent infliction of emotional distress. As shall be more fully discussed below, Williams subsequently added a fourth count alleging the right of Baby Doe to recover for injuries he/she sustained before his/her death under the Survival Act.
Manchester, subsequently, filed an answer denying all pertinent allegations. He further filed a third-party complaint alleging that Michelle Popec, the driver of the car in which Williams was a passenger, caused the collision through her own negligent driving. Popec, in turn, answered Manchester's complaint, denying all pertinent allegations.
Manchester ultimately filed a motion for partial summary judgment attacking Williams' wrongful death and negligent infliction of emotional distress counts on November 29, 2004. In the motion, he argued that no wrongful death action for Baby Doe could lie because it was not his negligence that was the proximate cause of its death. Manchester contended:
"Neither the car accident, x-rays nor any other potential risks to the fetus was the proximate cause of the fetus' death. Rather, it resulted from Plaintiff's voluntary decision to undergo [an] abortion procedure. * * * Plaintiff elected to have an abortion so that she could undergo a course of medical treatment for her own benefit. Plaintiff elected of her own volition to proceed with* * * hip surgery despite being provided options that would have allowed her to postpone surgery and forego termination of the pregnancy."
Manchester argued that Williams' negligent infliction of emotional distress claim must also fail for lack of causation, and that, further, she could present no proof of actionable emotional distress since she never sought treatment for that alleged distress.
Williams countered that, but for medical considerations stemming from Manchester's negligence, she would not have terminated the pregnancy, making his negligence the cause-in-fact of Baby Doe's death. Williams disputed that, under the circumstances of increased medical risks to Baby Doe and herself in maintaining the pregnancy, her abortion could be characterized as "elective." Williams further argued that the termination of the pregnancy was a reasonably foreseeable result of his negligently causing the collision, which would establish his negligence as the proximate cause of Baby Doe's death.
In their summary judgment pleadings, both parties relied on the depositions, taken in discovery, of Williams and Dr. James Keller to support their respective positions. Those depositions revealed the following pertinent facts.
In her deposition, Williams testified that she suffered a fractured pelvis and hip in the crash and was taken for treatment to Illinois Masonic Hospital. She was three months pregnant at the time. She was not married to the child's father, and the pregnancy was unplanned.
At the hospital, three doctors "convinced [her]" that electing to abort her child was the right thing to do under the circumstances, though the baby itself was unharmed in the collision. Dr. Kirby, an emergency room physician, Dr. Beigler, an
orthopedic surgeon, and Dr. George, an obstetrician-gynecologist, informed her that, because her pelvic bone was fractured, they could not be certain that she could maintain the pregnancy. If she did choose to remain pregnant, she would have to be bedridden. Her bones would heal, but would possibly have to be rebroken and reset after delivery. In that event, "[t]hey couldn't promise that [she] would ever walk right." The doctors also told her that the X-rays taken of her in the emergency room could cause "disabilities in the child and mental problems." She "took [the doctors' statements] as [meaning that] the best thing to do [was to] have [an] abortion and let them do * * * surgery [on her fracture]." No one counseled her against having an abortion. Williams underwent an abortion and Dr. Beigler subsequently successfully performed surgery on her pelvis.
Williams testified that she was not influenced to undergo an abortion by nonmedical factors. Prior to the crash, she had started to prepare for the baby's arrival, purchasing a bumper set and baby clothes. She cried "a lot" in the hospital, including around the time she underwent the abortion.
Dr. James Keller, a high-risk obstetrician-gynecologist, also gave a deposition in the case. Dr. Keller testified that he met Williams during his rounds at Illinois Masonic and consulted on her care, but did not actually provide any treatment. As a consulting physician, he was "[t]o make sure that [Williams] had as much information as possible, [and] to make sure that the orthopedic surgeon understood the relevant issues, so that they could make a decision as to what the best course of action would be." The Illinois Masonic doctors' counseling of Williams was to be non-judgmental, meaning only to allow "the patient [to have] the information to make a decision," not to advise her as to what decision she should make. Dr. Keller explained that "our overall goal [was] to be as nonguiding as possible."
According to Dr. Keller, at the time he consulted on her care, Williams had a viable pregnancy that could have gone to term. He explained, however:
"[T]o the fetus there[ ][was] the risk of [Williams'] drug and radiation exposure prior to this point; to the mother there[ ][was] an increase of prolonged immobilization with a pelvic fracture which carried short-term and long-term risks. The short-term risks would be mainly an increased risk of embolic phenomenon, thrombosis and embolism, blood clots. The long-term risks * * * they said that the longer that she waited to repair the hip the worse her outcome would be."
Respecting the fetus' exposure to radiation, Dr. Keller testified that there was "no known safe threshold for radiation exposure to a fetus." He acceded, however, that it was not a "forgone conclusion" that Baby Doe would have experienced difficulties due to his/her radiation exposure and that "[w]ith any individual fetus you won't be able to say, well, this is what would happen with this fetus." Dr. Keller could not quantify the increased risk to Baby Doe due to radiation exposure, nor could he quantify the amount of radiation Baby Doe was exposed to, though he testified that such quantification was possible through consultation with a physicist and geneticist. He stated, however, that there was "theoretically enough radiation [in this case] to cause a problem," citing to studies in which third-trimester fetuses experienced increased risks of childhood leukemia after only limited exposure to radiation. Moreover, had Williams elected to delay the surgery and to continue the pregnancy, she would have exposed Baby
Doe to additional radiation through her ongoing treatment. Speaking generally, Dr. Keller identified the risks of fetal radiation exposure to be the incorrect development of organs and "childhood and adulthood malignancies."
At one point in his deposition, defense counsel asked Dr. Keller to decipher his consultation notes. In one note, Dr. Keller recorded "Patient would like to continue pregnancy but not at risk to her long-term outcome." In another, he wrote:
"Spoke with attending ortho. There is no guarantee of good outcome regardless of immediate surgery, delayed second trimester surgery, or expectant management. However, immediate surgery offers best chance for good long-term outcome.
Options are termination of pregnancy with immediate surgery after recovery, delay until second trimester which would decrease risk to fetus of drug radiation exposure, or immediate surgery with fetus at risk for both loss as well as...
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