Illinois Wrongful Death Act Interpreted by Illinois Supreme Court to Deny Recovery Of Unborn Child Aborted After Serious Injury To Mother

The Illinois Supreme Court handed down a controversial decision interpreting the Illinois Wrongful Death Act. The Illinois wrongful death case, Williams v. Manchester, 2008 WL 879036 (Ill Sup Ct), involved a pregnant woman, the plaintiff, Michelle Williams, who was 10.5 weeks pregnant when she was seriously injured in a car crash in Chicago.

Because of her injuries, doctors advised that her own health was at risk if the uninjured unborn child was not aborted. The legal issue was whether or not Ms. Williams could bring an Illinois wrongful death suit against the wrongdoer for the death of her child. The court held that she may not because the crash did not injure the child. The reasoning went on to state that if the unborn child had survived, there would be no case to bring for lack of injuries (damages).

The Illinois wrongful death case filed in the circuit court ended on summary judgment in favor the defendant. A divided panel of the Illinois Appellate Court reversed the lower court decision giving rise to the appeal accepted by the Illinois Supreme Court.

The Supreme Court took some of its analysis from common law and the history of the statutory right to recover for wrongful death. In the common law there is no right to recover for wrongful death. But that changed with the enactment of wrongful death statutes, which were first enacted in Illinois in 1853. Quoting from a prior decision the court stated, “a wrongful death action is barred if the decedent, at the time of death, would not have been able to pursue an action for personal injuries.”
In the Williams case while the unborn baby was not injured from the accident, the mother’s injuries were so severe and complicated that an effort to save the baby while treating the mother could have severely injured both the mother and the unborn child. For example, the child would have been exposed to an inordinate amount of x-ray. At the same time, catering to the life of the unborn child would have altered the mother’s treatments so that she too would have had much greater risk of permanent, debilitating injuries which would not have been a risk with the ending of the pregnancy.

The Supreme Court was not convinced by the argument of plaintiff’s counsel that the radiation exposure to the unborn child and the initial phase of the abortion to the fetus was a foreseeable injury to the unborn child stemming directly from the accident.

The court instead focused on its interpretation of the Illinois Wrongful Death Act requiring a decedent to have sustained a compensable injury prior to death in order to meet the threshold test. And as the unborn child did not sustain an injury directly from the accident the court ruled in favor of the defendant.

Kreisman Law Offices, 55 West Monroe Street, Suite 3720, Chicago, IL 60603; 312-346-0045; 800-583-8002; bob@robertkreisman.com; www.robertkreisman.com is law firm dedicated to handling medical malpractice lawsuits in Illinois and Cook County, including Tinley Park, Rogers Park, Bronzeville, Melrose Park, Palos Heights, Park Forest, Crestwood, Evanston and surrounding counties.