Williams v. Manchester ( 2008 )

Docket No. 104524.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MICHELLE WILLIAMS, Indiv. and as Special Adm’r of the Estate
of Baby Doe, Deceased, Appellee, v. JOHN C. MANCHESTER,
Appellant.
Opinion filed April 3, 2008.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
This appeal focuses on a wrongful-death claim that plaintiff,
Michelle Williams, brought in the circuit court of Cook County
against defendant, John Manchester. Plaintiff sought damages for the
death of her unborn child, Baby Doe. The circuit court entered
summary judgment in favor of defendant on that claim, but a divided
panel of the appellate court reversed. 372 Ill. App. 3d 211. We
allowed defendant’s petition for leave to appeal. 210 Ill. 2d R. 315(a).
We now vacate in part the judgment of the appellate court and
remand the cause to the circuit court for further proceedings.
I. BACKGROUND
The record, which includes plaintiff’s deposition testimony,
contains the following pertinent evidence. In October 2002, plaintiff
was 10½ weeks pregnant with Baby Doe, and she had been aware of
her pregnancy for approximately one month. Plaintiff had planned to
carry Baby Doe to term, and plaintiff and the child’s father had been
preparing for the birth.
On the night of October 15, 2002, plaintiff was a passenger in an
automobile (hereafter, plaintiff’s automobile) proceeding east on
Montrose Avenue in Chicago. Defendant was driving west on
Montrose. As plaintiff’s automobile was proceeding through the
intersection of Montrose and Western Avenues, defendant turned left,
attempting to proceed south on Western Avenue. The two vehicles
collided, with the driver’s side of defendant’s vehicle crashing into
that of plaintiff’s automobile. According to plaintiff, “[i]t was almost
like a head-on” collision. Plaintiff’s forehead broke through the
windshield. When plaintiff regained consciousness, a firefighter was
beside her in the automobile, and he extricated her from the
windshield. Plaintiff felt pain not only in her head, but also in her hip.
An ambulance took plaintiff to Advocate Illinois Masonic
Medical Center. According to plaintiff, she and Baby Doe’s father
met with a team of physicians and discussed her condition and
treatment options. The physicians informed plaintiff that she did not
suffer a spontaneous abortion and that the baby itself was not injured
in the collision; rather, “the baby was fine.”
However, the physicians informed plaintiff that she, herself,
suffered a broken hip and pelvis. As a result, according to plaintiff:
“[The physicians] told me that because my pelvic bone was
broke, they couldn’t be certain that I would hold the baby. If
I did choose to stay pregnant, I’d have to be bedridden and
then the bones would heal themselves and then they might
have to go back in and break them again. They couldn’t
promise that I would ever walk right. Pretty much everything
they were saying is, they couldn’t promise anything.”
Plaintiff further described the meeting as follows:
“They said that if the bones healed on their own, they might
have to go back in and rebreak them to set them again and I’d
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still have to have surgery but it would be afterwards; and they
couldn’t promise with x-rays and all that that [sic] the baby
would even be okay.”
Dr. Joanne Kirby, plaintiff’s emergency room physician, told plaintiff
that an X-ray had been taken of her, which, according to plaintiff,
“could cause disabilities in the child and mental problems.”
According to her deposition, plaintiff understood these physicians to
share the opinion that it would be best for plaintiff to terminate her
pregnancy. Further, when plaintiff ultimately decided to terminate her
pregnancy, no physician told her that it was a bad decision or that her
decision was not in the best interest of her health. Plaintiff’s hospital
record indicated: “Patient desires consultation with high-risk OB/fetal
specialist.”
Dr. James Keller, a high-risk obstetrician-gynecologist, testified
in a deposition, relying on several notes in plaintiff’s hospital record.
At the time of the accident, Dr. Keller was the director of high-risk
obstetrics at Illinois Masonic. On October 17 and 18, 2002, he met
plaintiff and consulted on her care, but did not actually provide any
treatment. He explained that, as a consulting physician, his role was
“[t]o make sure that [plaintiff] had as much information as possible,
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 counseling that physicians at Illinois
Masonic give to patients is “nonjudgmental.” Dr. Keller explained
that physicians there “just make sure that the patient has the
information to make a decision. *** [O]ur overall goal is to be as
nonguiding as possible.”
In terms of plaintiff specifically, Dr. Keller needed plaintiff to
understand the following issues: plaintiff’s optimal therapy and the
attendant risks of that therapy on the fetus; the best course of
treatment for the fetus and the negative effects it would that have on
plaintiff; and possible “intermediate scenarios.” At the time of Dr.
Keller’s consultation, plaintiff had a viable pregnancy that could have
gone to term. However:
“To the fetus there’s the risk of her [plaintiff’s] drug and
radiation exposure prior to this point; to the mother there’s an
increase of prolonged immobilization with a pelvic fracture,
which carried short-term and long-term risks. The short-term
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risks would be mainly an increased risk of embolic
phenomenon, thrombosis and embolism, blood clots. The
long-term risks I would sort of defer to orthopedics, but they
said that the longer that she waited to repair the hip the worse
her outcome would be.”
Thus, Dr. Keller opined that there were “risks involved to the mother
and the fetus of continuing the pregnancy.”
Regarding Baby Doe’s exposure to radiation, Dr. Keller opined:
“With any individual fetus you won’t be able to say, well, this
is what would happen with this fetus; but in a general term, if
you want to know what’s the risk, there is no safe threshold
for radiation to a fetus, meaning that once she’s radiated there
is an increased risk of problems related to radiation.”
Dr. Keller explained that, generally, radiation exposure may cause
organs to develop incorrectly, existing organs to grow and mature
incorrectly, and an increased risk of childhood and adult
malignancies. Dr. Keller based his opinion on “general medical
knowledge” and an unidentified “whole body of literature talking
about the damages caused by radiation.” He explained that “it’s sort
of part of the general obstetric literature *** that radiation is a known
teratogen or cause of birth defects.”
However, Dr. Keller recognized that Baby Doe would not
inevitably have had problems because of the radiation to which it was
exposed up to the time of his consultation. Also, Dr. Keller could not
opine whether Baby Doe would have had problems even with
additional radiation exposure throughout the pregnancy. Indeed, Dr.
Keller answered in the affirmative the question: “There is no way
with absolute certainty to conclude what the ultimate effects of
radiation exposure is to a fetus?” Dr. Keller actually “had plenty of
patients who have had exposure to radiation who have delivered
perfectly healthy babies.” Dr. Keller would defer to radiology
specialists as to quantifying the amount of radiation to which Baby
Doe was exposed and the corresponding risk. Dr. Keller did not
consider himself an expert in medical radiation exposure so as to
render an opinion in this case. Although he stated that he could so
qualify himself through personal research and consultation with
radiology specialists, he did not plan to do so in this case.
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Dr. Keller read his consultation notes into the deposition record.
When he first met plaintiff, he discussed plaintiff’s case only
generally. He needed to know the impact of continuing the pregnancy
on her orthopedic treatment and what the alteration of such treatment
to benefit the fetus would mean to plaintiff’s long-term outcome. His
notes indicated: “Patient would like to continue pregnancy but not at
risk to her long-term outcome.” Dr. Keller’s notes indicated that he
would speak with plaintiff’s orthopedist “to get better idea of
drug/radiation exposure, risk of waiting, and then revisit with
patient.”
Dr. Keller also read into the record a note from plaintiff’s
orthopedist, Dr. David Beigler, which stated: “If child is desired, then
nonoperative care is recommended.” However, the note continued: “If
the fetus is not wanted,” termination of pregnancy “is suggested such
that ORIF or open reduction, internal fixation could be performed.
Similarly, if spontaneous abortion occurs, ORIF may be
contemplated.”1 Remembering his conversation with Dr. Beigler, Dr.
Keller testified: “it seems the gist of the conversation was that the
longer we waited the worse the long-term outcome for the mother is
going to be.”
After consulting with plaintiff’s orthopedist, Dr. Keller had a
second meeting with plaintiff. Baby Doe’s father was also present.
Dr. Keller discerned four options: (1) immediate pelvis surgery
without termination of pregnancy; (2) immediate termination of
pregnancy and, postrecovery, pelvis surgery; (3) delayed pelvis
surgery until second trimester of pregnancy; and (4) delayed pelvis
surgery until plaintiff gave birth. The first option put the fetus at risk
for loss as a result of the pelvis surgery itself, “as well as long-term
problems due to radiation/medicine which would be difficult to
quantify.” The third option would decrease the risk to the fetus of
drug and radiation exposure. However, the second option offered
plaintiff the “best chance” for a “good long-term outcome.”
1
“Open reduction” refers to cutting through soft tissue until a dislocated
bone can be reached and manipulated. 4 J. Schmidt, Attorneys’ Dictionary
of Medicine O–57 (2007). “Internal fixation” refers to fastening together
a fractured bone by such means as metal plates or screws, applied directly
to the bone. 3 J. Schmidt, Attorneys’ Dictionary of Medicine I–142 (2007).
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Essentially, the longer plaintiff delayed pelvis surgery, the worse her
long-term outcome would have been.
Dr. Keller’s notes indicated: “Long discussion with patient and
father of the baby. They understand all issues. I will put through PEC
papers.” Dr. Keller explained that “PEC” referred to the hospital’s
perinatal ethics committee. The health-care system of which Illinois
Masonic is a member has a policy not to terminate a pregnancy
unless, as Dr. Keller paraphrased, there is a significant risk to the
mother or the fetus. His last note, dated October 18, 2002, stated:
“Patient opts for termination of pregnancy. Paperwork forwarded.
Awaiting PEC results. Risk of D & C[2] discussed.” Dr. Keller had no
subsequent contact with plaintiff.
According to plaintiff’s deposition, the pregnancy was terminated
within one week after the accident. The pelvis surgery was performed
approximately two weeks subsequent to the accident.
Plaintiff timely filed a three-count complaint in the circuit court,
alleging that defendant’s negligence proximately caused the
automobile collision. In addition to seeking damages for her own
injuries, plaintiff, as administrator of the estate of Baby Doe, brought
an action pursuant to the Wrongful Death Act (740 ILCS 180/1 (West
2002)). Plaintiff alleged that she was pregnant with Baby Doe, and
that defendant’s negligence proximately caused the collision,
“ultimately causing” Baby Doe’s death. Plaintiff sought damages for
injuries to herself and Baby Doe’s father as next of kin. In her third
claim, plaintiff sought damages for defendant’s alleged negligent
infliction of emotional distress. Defendant filed an answer denying all
material allegations.3
2
“The abbreviation for dilatation and curettage, an operation in which the
cervix of the uterus is dilated by means of an instrument and the interior of
the uterus is then scraped out (curetted) by means of a curet (scraping
instrument).” 2 J. Schmidt, Attorneys’ Dictionary of Medicine D–1 (2007).
3
Defendant also filed a third-party complaint against Michelle Popec, who
was the driver of the automobile in which plaintiff was a passenger.
Defendant alleged that Popec’s negligent driving caused the accident. Popec
filed an answer denying all material allegations.
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Discovery adduced the above-recited evidence. Defendant moved
for summary judgment on plaintiff’s claims for wrongful death and
negligent infliction of emotional distress. Regarding the wrongful-
death claim, defendant argued that the accident, X-ray, or any other
potential risk to the fetus was not the proximate cause of the fetus’
death. Rather, Baby Doe’s death was the result of plaintiff’s voluntary
decision to terminate the pregnancy. Plaintiff voluntarily chose to
terminate the pregnancy so that she could proceed with the pelvis
surgery, “despite being provided options that would have allowed her
to postpone surgery and forego termination of the pregnancy.”
In response, plaintiff contended that defendant’s negligence was
the “cause in fact” of Baby Doe’s wrongful death because “but for the
defendant’s negligence the termination [of the pregnancy] would not
have occurred.” Plaintiff further contended that defendant’s
negligence was the proximate cause of Baby Doe’s death because
plaintiff’s decision to terminate the pregnancy “was a foreseeable
result of the defendant’s negligence.” Both defendant and plaintiff
relied on the depositions of plaintiff and Dr. Keller to support their
respective positions.
The circuit court entered summary judgment in favor of defendant
on the wrongful-death claim.
“The Court finds that based on the express language of the
Wrongful Death Act, Plaintiff cannot maintain a cause of
action on behalf of her fetus. In establishing proximate cause,
the Act does not take into consideration the reasonable
foreseeability of an injury or death, but, rather, focuses
primarily on whether a defendant’s conduct actually caused
the injury or death. Here, the evidence establishes that,
subsequent to the car accident, Plaintiff’s fetus was uninjured
and viable. Thus, Plaintiff could have continued with the
pregnancy. However, rather than continue with the pregnancy
and wait until later to address her own injuries, Plaintiff chose
to receive medical treatment at the sacrifice of her fetus,
thereby, terminating her pregnancy.”
The circuit court concluded that plaintiff’s termination of her
pregnancy was the actual cause of Baby Doe’s death, and defendant’s
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alleged negligence did not cause any injury or death to Baby Doe, as
required by the Wrongful Death Act.4
We observe that plaintiff shortly thereafter added a survival claim
(count IV), in which plaintiff, as administrator of Baby Doe’s estate,
sought damages for injuries to Baby Doe, “including radiation and
medication exposure,” as a result of defendant’s negligence.
Defendant moved for summary judgment. In her response, plaintiff
not only relied on Dr. Keller’s testimony, but also attached an
affidavit by Dr. Mark Edelman, a board-certified radiologist. Having
reviewed plaintiff’s hospital record, Dr. Edelman stated that plaintiff
received a CAT scan and pelvic X-rays and, consequently, was
exposed to radiation. “Based on a reasonable degree of radiological
certainty,” Dr. Edelman opined that Baby Doe’s radiation exposure
“prior to the pregnancy termination *** produced an increased risk
of future injury to the fetus, specifically neural tube deformity.” Dr.
Edelman opined that “the fetus was damaged in that it sustained with
a reasonable degree of radiological certainty an increased risk of
future neural tube deformity.”
The circuit court granted defendant’s motion for summary
judgment on this claim. The court found, inter alia, that the record
did not contain any “quantifiable evidence that the fetus was actually
damaged from the radiation exposure. *** Evidence that the fetus
may have been at risk for future deformities is purely speculative. A
risk of injury does not equate to an actual injury.” (Emphasis in
original.)
The circuit court found that these summary judgment orders were
final and that there was no just reason to delay enforcement or appeal
pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)).
4
However, the circuit court denied defendant’s motion for summary
judgment on plaintiff’s claim of negligent infliction of emotional distress.
According to the court, a jury could find that: (1) “it was reasonably
forseeable to expect that a pregnant woman who is injured in a motor vehicle
accident would be forced to put her fetus at risk in order to have her own
injuries treated”; and (2) “forcing an expectant mother to choose between
treating her own injuries and saving the life of her fetus, a decision she would
otherwise not be forced to make but for the defendant’s negligence, is a
severe and serious emotional injury.”
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A divided panel of the appellate court reversed the summary
judgment in favor of defendant on plaintiff’s wrongful-death claim.
372 Ill. App. 3d 211. The appellate court began its analysis of that
claim by observing that “[a]side from the additional element of the
occurrence of death, the elements of a wrongful death claim are
identical to those of a common law negligence claim.” 372 Ill. App.
3d at 223. According to the appellate court, the dispositive issue in
the appeal was “grounded in established tort principles surrounding
proximate cause.” 372 Ill. App. 3d at 223. The court concluded:
“[W]e cannot agree that, as a matter of law, it would be unforeseeable
that a pregnant woman, injured through a person’s negligence, would
agree to endure the medical consequences to herself, or the fetus for
that matter, regardless of their severity, simply for the sake of
maintaining the pregnancy.” 372 Ill. App. 3d at 234. The court held:
“Given the risks and alternatives communicated to her [plaintiff] by
her physicians, and the legality and availability of the choice she
made, the foreseeability of that choice must be determined by a jury
and not by a judge as a matter of law.” 372 Ill. App. 3d at 246-47.
We observe that the appellate court affirmed the summary
judgment in favor of defendant on the survival count. The court found
that, even if the increased risk of future harm can legally constitute a
present injury, plaintiff “did not make below and does not presently
make any attempt to show what antemortem damages Doe may have
incurred therefrom.” 372 Ill. App. 3d at 248. Recognizing that a valid
cause of action must generally include both injury and damages, the
appellate court concluded: “Thus, by declining to even address Baby
Doe’s antemortem damages, [plaintiff] has given us no basis on
which to find error in the circuit court’s order granting summary
judgment on her survival count.” 372 Ill. App. 3d at 248.
Justice Cahill dissented from both the reasoning and result of the
court on the wrongful-death claim. He disagreed that the controlling
analysis should be grounded in general tort principles surrounding
proximate cause. Rather, he opined that the court “must decide, as a
matter of law, whether the language of the Wrongful Death Act
permits a cause of action based on the facts of this case.” 372 Ill.
App. 3d at 249 (Cahill, J., dissenting). Accepting that Baby Doe was
a “person” within the meaning of the Wrongful Death Act, Justice
Cahill reasoned that “there can be no cause of action for wrongful
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death. Had the fetus not been aborted, there is no way of knowing
under the facts of this case whether the fetus had suffered an
actionable injury before death.” 372 Ill. App. 3d at 249-50 (Cahill, J.,
dissenting).
II. ANALYSIS
This matter is before us on the appellate court’s reversal of the
grant of summary judgment in favor of defendant on plaintiff’s
wrongful-death claim. The purpose of summary judgment is not to try
a question of fact, but rather to determine whether a genuine issue of
material fact exists. Bagent v. Blessing Care Corp., 224 Ill. 2d 154,
162 (2007); Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,
517 (1993). Summary judgment is appropriate only where “the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.” 735 ILCS 5/2–1005(c) (West 2002).
In determining whether a genuine issue as to any material fact
exists, a court must construe the pleadings, depositions, admissions,
and affidavits strictly against the movant and liberally in favor of the
opponent. A triable issue precluding summary judgment exists where
the material facts are disputed or where, the material facts being
undisputed, reasonable persons might draw different inferences from
the undisputed facts. Although summary judgment can aid in the
expeditious disposition of a lawsuit, it remains a drastic means of
disposing of litigation and, therefore, should be allowed only where
the right of the moving party is clear and free from doubt. Adams v.
Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004) (and cases cited
therein). If the plaintiff fails to establish any element of the cause of
action, summary judgment for the defendant is proper. Bagent, 224
Ill. 2d at 163; Dardeen v. Kuehling, 213 Ill. 2d 329, 335 (2004). In
appeals from summary judgment rulings, review is de novo. Bagent,
224 Ill. 2d at 163; Roth v. Opiela, 211 Ill. 2d 536, 542 (2004).
A. Controlling Principles
Plaintiff brings her wrongful-death claim pursuant to the
Wrongful Death Act (740 ILCS 180/0.01 (West 2002)). Even when
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prompted by the dissent, the appellate court majority failed to
apprehend the statutory nature of a wrongful-death action. The
conflicting analyses of the appellate court in this case, and the
arguments of counsel before this court, indicate that a thorough
discussion of the Wrongful Death Act is necessary.
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. Howlett v. Doglio, 402 Ill. 311, 319 (1949).
Also at common law, there was no cause of action to recover
damages for the death of another by wrongful act, negligence, or
default. Biddy v. Blue Bird Air Service, 374 Ill. 506, 513 (1940); see
generally W. Keeton, Prosser & Keeton on Torts §125A, at 940 (5th
ed. 1984) (“If the tortfeasor caused a victim’s death, relatives and
dependents of the victim who were deprived of financial support or
who suffered emotional loss, had no cause of action of their own”).
Therefore, at common law: “The result was that it was cheaper for the
defendant to kill the plaintiff than to injure him, and that the most
grievous of all injuries left the bereaved family of the victim, who
frequently were destitute, without a remedy.” W. Keeton, Prosser &
Keeton on Torts §127, at 945 (5th ed. 1984).
In 1853, the Illinois General Assembly enacted the Injuries Act
(1853 Ill. Laws 97), now known as the Wrongful Death Act (740
ILCS 180/0.01 et seq. (West 2002)).5 Section 1 of our Wrongful
Death Act currently reads exactly as it did when first enacted 155
years ago:
“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
5
In 1846, the British Parliament enacted what is familiarly known as Lord
Campbell’s Act, which served as the model for most state wrongful death
statutes. W. Keeton, Prosser & Keeton on Torts §127, at 945-46 (5th ed.
1984). The Illinois Wrongful Death Act is substantially a copy of Lord
Campbell’s Act. Hall v. Gillins, 13 Ill. 2d 26, 29 (1958); Nudd v. Matsoukas,
7 Ill. 2d 608, 612 (1956); 740 ILCS Ann. 180/0.01, Historical & Statutory
Notes, at 158 (Smith-Hurd 2002).
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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 2002).
In subsequent sections, the Act specifies in whose name and for
whose benefit the action shall be brought. It also establishes the time
limit in which the suit shall be commenced, the maximum amount
that can be recovered, and the manner in which proceeds are
distributed. 740 ILCS 180/2 et seq. (West 2002).
The primary rule of statutory construction is to ascertain and give
effect to the intent of the legislature. We look to the language of the
statute itself as the best indication of legislative intent. Kirwan v.
Welch, 133 Ill. 2d 163, 165 (1989); Metropolitan Life Insurance Co.
v. Washburn, 112 Ill. 2d 486, 492 (1986). Further, a statute in
derogation of the common law cannot be construed as changing the
common law beyond what the statutory language expresses or is
necessarily implied from what is expressed. In construing such a
statute, a court will not presume that the legislature intended an
innovation of the common law further than that which the statutory
language specifies or clearly implies. Russell v. Klein, 58 Ill. 2d 220,
225 (1974), citing Walter v. Northern Insurance Co. of New York,
370 Ill. 283, 288-89 (1938). Indeed, “statutes in derogation of
common law are to be strictly construed and nothing is to be read into
such statutes by intendment or implication.” Summers v. Summers, 40
Ill. 2d 338, 342 (1968).
In accord with these principles, this court has consistently
expressed its understanding of the Wrongful Death Act. Only four
years subsequent to its enactment, this court first construed the new
Injuries Act, observing that the statute created a new cause of action
“unknown to the common law, and should not be extended beyond
the fair import of the language used.” City of Chicago v. Major, 18
Ill. 349, 356 (1857). This understanding of the Act continues to the
present day:
“The Wrongful Death Act permits a recovery for the death
of an individual by wrongful act, neglect, or default, where
none existed at common law. *** [T]he Act is viewed,
traditionally, as creating the cause of action, which must be
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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.”
Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 360
(1995) (collecting cases).
The Act alone is the source of the right to sue. 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.
Wilson v. Tromly, 404 Ill. 307, 310 (1949); accord Hall, 13 Ill. 2d at
29 (observing that the legislature “created both the right and the
remedy”). Because this is a statutory action, where the right is
conditional, the plaintiff must bring the case clearly within the
prescribed requirements necessary to confer the right of action.
Hartray v. Chicago Rys. Co., 290 Ill. 85, 86-87 (1919). Also, this
court has repeatedly held that the Act “ ‘should be strictly
construed.’ ” Pasquale, 166 Ill. 2d at 360, quoting Wilson, 404 Ill. at
310; Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 983 (1993)
(same). This appeal turns on one such statutory requirement.
An injury resulting from the wrongful act, neglect, or default of
another gives the victim, if she survives the injury, a right of action;
if the victim dies, the Act transfers the right of action to the victim’s
personal representative. “In either case the cause of action is the
same.” Crane v. Chicago & Western Indiana R.R. Co., 233 Ill. 259,
262 (1908). Based on the plain language of section 1:
“[O]ur cases have consistently interpreted the Wrongful
Death Act to require, as a condition for maintaining a
wrongful death action, that the decedent have been able to
bring, at the time of his death, an action for damages resulting
from the occurrence. Thus, in a variety of contexts, our court
has referred to the rule that 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. [Citations.] In this
sense an action under the Wrongful Death Act may be said to
be derivative of the decedent’s rights, for the ability to bring
the wrongful death action ‘depends upon the condition that
the deceased, at the time of his death, had he continued to
live, would have had a right of action against the same person
or persons for the injuries sustained.’ Biddy, 374 Ill. at 513-
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14.” Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d
449, 454-55 (1995).
If the decedent had no right of action at the time of his or her death,
the personal representative has none under the Wrongful Death Act.
Thus, the “injury” that the personal representative alleges caused the
decedent’s death must be the same “injury” that the decedent suffered
prior to his or her death. Biddy, 374 Ill. at 514; Crane, 233 Ill. at 262.
Further: “In disallowing wrongful death actions when the decedent
could not have maintained a claim for personal injuries at the time of
death, the Act attaches no significance to the particular reason why
the decedent’s claim would have been barred.” Varelis, 167 Ill. 2d at
460.
In the present case, the appellate court did not recognize this
requirement of section 1 of the Wrongful Death Act; indeed, the court
failed to cite to even one of the many decisions of this court so
holding, only some of which we cited above. The appellate court
began its analysis of the Wrongful Death Act by observing: “Aside
from the additional element of the occurrence of death, the elements
of a wrongful death claim are identical to those of a common law
negligence claim.” 372 Ill. App. 3d at 223. Responding to the dissent,
the court further observed that “the standards surrounding proximate
causation in ordinary negligence cases have always applied in
wrongful death cases, including the standards surrounding multiple
and intervening causes.” 372 Ill. App. 3d at 245.
These observations are correct–when viewed in isolation. As
earlier stated, based on the plain language of section 1 of the Act, the
representative’s wrongful-death action is derived from the decedent’s
cause of action and is limited to what the decedent’s cause of action
against the defendant would have been had the decedent lived.
“Obviously, this provision of the statute prevents automatic recovery
for every death. It incorporates into the statutory right of action the
familiar concepts of tort liability,–negligence, contributory
negligence, and the like.” Welch v. Davis, 410 Ill. 130, 132 (1951).
However: “Because the action is viewed as a creature of statute, its
conditions of liability proscribe the right of action itself and not
merely the remedy alone.” Pasquale, 166 Ill. 2d at 361. The statutory
requirement of an injury to the decedent is a mandatory prerequisite
to confer the right of action on the representative. In other words,
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general tort principles shape the decedent’s and, derivatively, the
representative’s remedy in the form of a cause of action. However,
the statutory requirement of an injury to decedent confers the right of
action in the first place. See Hartray, 290 Ill. at 86-87; Crane, 233 Ill.
at 262. We next consider what was–and was not–the actionable injury
in this case.
B. Baby Doe’s “Injury” Pursuant to Wrongful Death Act
The appellate court misapprehended the injury in this case for
which the Wrongful Death Act provides a right of action. The court
framed its analysis as follows:
“The parties concur that the primary issue in the case
before us is grounded in established tort principles
surrounding proximate cause. Specifically, the parties agree
that the primary issue presented in this case is whether a
party’s negligence causing injury to a pregnant woman may
make it foreseeable that she will decide to undergo an
abortion to facilitate her own medical treatment, so that the
original tortfeasor will be the proximate cause of the fetus’
death, or if the woman’s decision to abort becomes a
superceding cause of the fetus’ death thereby relieving the
original tortfeasor of liability for the fetus’ death.” (Emphases
added.) 372 Ill. App. 3d at 223.
Thus, the court expressly identified the “injury” in plaintiff’s
wrongful-death claim as Baby Doe’s death.
The appellate court’s statement of the issue and ensuing
proximate cause analysis ignores the plain language of section 1 of
the Wrongful Death Act as consistently interpreted by this court. As
the appellate court dissent correctly recognized:
“The majority’s proximate cause analysis and conclusion
that the negligence of [defendant] can be causally linked to
the abortion extends the reach of the wrongful death statute
beyond its plain language. Put another way, the proximate
cause analysis of the majority relies on a theory that the
‘death’ of the fetus is the ‘injury’ that supports the wrongful
death cause of action. The analysis, I respectfully submit,
writes out of the Wrongful Death Act the requirement that
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there must have been an actionable injury to the fetus with
recoverable damages that could have been maintained had
death not intervened.” 372 Ill. App. 3d at 250-51 (Cahill, J.,
dissenting).
We agree.
Although the appellate court viewed the dissent’s position as a
“novel ‘direct injury’ theory” (372 Ill. App. 3d at 244), it is clear from
our discussion of the Wrongful Death Act that the dissent was simply
applying the Act to the evidence in this case. Of course, on a certain
level, any death, by itself, creates a loss to the decedent’s next of kin.
However, a wrongful-death action is premised on the deceased’s
potential, at the time of death, to bring an action for injury. Varelis,
167 Ill. 2d at 457-58, quoting Wyness v. Armstrong World Industries,
Inc., 131 Ill. 2d 403, 411 (1989). In the present case, it was “not until
the death occurred could the court examine whether there was a
viable wrongful injury which would permit the case to proceed.”
Wyness, 131 Ill. 2d at 415. Having determined that Baby Doe’s death
itself is not the actionable injury in this case, this court’s long-
standing construction of section 1 of the Act “refers us at once to the
inquiry, whether an action could have been maintained by the child,
for the injury, had he survived it.” Major, 18 Ill. at 356.
The evidence of record discloses that Baby Doe could not have
maintained a claim for personal injury against defendant based on the
automobile collision itself. Initially, plaintiff’s physicians told
plaintiff that Baby Doe was not injured in the collision. Further, Dr.
Keller testified positively and unequivocally that Baby Doe did not
suffer any injury as a result of the accident itself. According to Dr.
Keller, plaintiff had a viable pregnancy that could have gone to term.
Indeed, in her brief before this court, plaintiff contends that she “has
never claimed that BABY DOE received injuries in the actual crash
but rather that they occurred in the hospital following the crash.”
In her brief, plaintiff first points to various statements in the
record in support of her contention that “had the fetus survived it
could have maintained an action against the Defendant for radiation
and medication exposure occurring in utero which was caused by the
Defendant’s negligence.” Significantly, however, at oral argument,
plaintiff expressly conceded that, for purposes of summary judgment,
the record did not contain sufficient evidence that Baby Doe suffered
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a present, actionable injury as a result of the radiation exposure. Drs.
Keller and Edelman did not opine that Baby Doe’s radiation exposure
resulted in an actual, present injury, but rather that the fetus incurred
an increased risk of future harm.
Plaintiff’s concession leaves us with her remaining contention.
Relying on Dillon v. Evanston Hospital, 199 Ill. 2d 483 (2002),
plaintiff posits, as a matter of law, that Baby Doe’s radiation exposure
is an increased risk of future harm and that “an increased risk of
future harm is a present injury” for which the fetus could have
brought an action for damages against defendant. This contention
lacks merit for two reasons.
First, as 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. In Dillon, the plaintiff brought a medical malpractice
action arising from a broken catheter. Defendant physician inserted
a 16-centimeter catheter into a vein under the plaintiff’s clavicle. The
physician subsequently removed the catheter. However, unbeknownst
to the plaintiff or the physician, a nine-centimeter fragment of the
catheter broke off and remained in the plaintiff. The fragment
migrated to the plaintiff’s heart. The tip of the fragment became
embedded in a wall of a chamber of the plaintiff’s heart, with the rest
of the fragment floating therein. Defendants opined that it would be
more dangerous to attempt to remove the fragment than to leave it in
place. Dillon, 199 Ill. 2d at 487-88. The present injury was the
catheter embedded in the plaintiff’s heart. At issue in Dillon was the
availability and computation of damages for the increased risk of
future harm from the plaintiff’s present injury. Dillon, 199 Ill. 2d at
496-507. This court held that for a plaintiff to recover damages for an
increased risk of future harm in a tort action, the plaintiff must
establish, inter alia, that the defendant’s breach of duty caused a
present injury that resulted in the increased risk of future harm.
Dillon, 199 Ill. 2d at 506, citing Connecticut Civil Jury Instruction
No. 2–40(c). However, “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.” Forthenberry v. Franciscan Sisters Health
Care Corp., 156 Ill. App. 3d 634, 636 (1987) (applying Wrongful
Death Act).
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Second, even if we were to convert or expand Dillon so as to
describe an increased risk of future harm as a present injury, plaintiff,
as a matter of fact, has not presented any evidence that Baby Doe was
injured as a result of the increased risk. In the context of Baby Doe’s
survival claim, the appellate court found that plaintiff failed to present
any evidence of damages. 372 Ill. App. 3d at 248; see Wyness, 131 Ill.
2d at 410 (observing that a “survival action allows for recovery of
damages for injury sustained by the deceased up to the time of
death”). As the appellate correctly observed, there can be no legal
injury without damages. 372 Ill. App. 3d at 248; see Zapf v.
Makridakis, 46 Ill. App. 3d 764, 766 (1977) (observing that proof of
damages “is essential for recovery in a suit for negligence”); Kerbeck
v. Suchy, 132 Ill. App. 2d 367, 370 (1971) (same); Franks v. North
Shore Farms, Inc., 115 Ill. App. 2d 57, 65 (1969) (“An action cannot
be maintained for an injury without damage”).
In summary, 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. Varelis, 167 Ill. 2d at 454-55; Crane, 233 Ill. at 262;
see Kessinger, 251 Ill. App. 3d at 987-88. Further, it is the
representative’s burden to bring the case within the prescribed
requirements in order to confer the right of action. Hartray, 290 Ill.
at 86-87.
In the present case, the record does not establish the threshold
requirement under the Wrongful Death Act that Baby Doe, prior to
death, had a present injury such that the fetus could have maintained
a cause of action against defendant. Any complaint regarding this
statutory prerequisite must be taken to the legislature. Plaintiff’s sole
contention is that Baby Doe suffered an increased risk of future harm
from radiation exposure. As a matter of law, such circumstances are
not actionable under the Wrongful Death Act and, even if they were,
this record is factually insufficient. Accordingly, plaintiff’s wrongful-
death claim fails and the circuit properly entered summary judgment
in favor of defendant.
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III. CONCLUSION
For the foregoing reasons, we uphold the circuit court’s entry of
summary judgment in favor of defendant on plaintiff’s wrongful-
death claim. Accordingly, that part of the judgment of the appellate
court, which reversed the summary judgment, is vacated, the
judgment of the circuit court of Cook County is affirmed, and the
cause is remanded to the circuit court for further proceedings.
Appellate court judgment vacated in part;
circuit court judgment affirmed;
cause remanded.
JUSTICE BURKE took no part in the consideration or decision
of this case.
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