dissenting:
I respectfully disagree with the majority’s position that a cause of action lies under the wrongful death statute under these facts or that the primary issue in this case “is grounded in established tort principles surrounding proximate cause.” 372 Ill. App. 3d at 223. I believe we 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. Two preliminary observations:
(1) “Statutes that are in derogation of the common law will be strictly construed and nothing will be read into such statutes by intendment or implication. Even if a statute is remedial in nature, if it is in derogation of the common law, it will be strictly construed when determining which persons come within its coverage. Thus, the meaning of a statute and the extent to which it changes the common law will not be extended beyond that which the language of the statute absolutely requires by its express terms or by necessary implication.” Cherney v. Soldinger, 299 Ill. App. 3d 1066, 1072, 702 N.E.2d 231 (1998), citing In re W.W., 97 Ill. 2d 53, 57, 454 N.E.2d 207 (1983); Malfeo v. Larson, 208 Ill. App. 3d 418, 424, 567 N.E.2d 364 (1990).
(2) “Even were we to speculatively agree with plaintiffs argument regarding the legislature’s motive in enacting the statute, it is irrelevant. [Henry v. St. John’s Hospital, 138 Ill. 2d 533, 542, 563 N.E.2d 410 (1990).] Our only function is to enforce the law as enacted, and we may not engraft new or different provisions onto the statute. In Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98, 476 N.E.2d 1378, the court found that superimposing comparative negligence onto section 2 of the Wrongful Death Act ‘would plainly be a forbidden judicial amendment to the statute.’ It would be incumbent upon the legislature itself to revise the Wrongful Death Act to make it more compatible with the emergent doctrine of comparative negligence.” Haist v. Wu, 235 Ill. App. 3d 799, 813, 601 N.E.2d 927 (1992).
My point in citing to these cases is to suggest that the legislature never contemplated a cause of action for wrongful death that would embrace the unborn. That we now have a body of law that invests a fetus with the rights attributable to persons after a live birth is unmistakable. But this does not alter my view that the Wrongful Death Act cannot support a cause of action based on the facts of this case.
The majority correctly transcribes the wrongful death statute. See 372 Ill. App. 3d at 222. Although the fetus here was a “person” within the meaning of the statute (see 740 ILCS 180/2.2 (West 2002); Seef v. Sutkus, 145 Ill. 2d 336, 338, 583 N.E.2d 510 (1991)), there can be no cause of action for wrongful 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. The language of the statute is clear: a person may be held liable for the death of another only if the decedent would have had a direct cause of action against the wrongdoer had death not ensued. Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 983-88, 623 N.E.2d 946 (1993).
“ ‘[T]he liability *** created [by the wrongful death statute] 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. If the deceased had no right of action at the time of his death, the personal representative has none under the Wrongful Death Act].’ (Emphasis added.)” Kessinger, 251 Ill. App. 3d at 984, quoting Biddy v. Blue Bird Air Service, 374 Ill. 506, 513-14, 30 N.E.2d 14 (1940).
See also Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 455, 657 N.E.2d 997 (1995); Mooney v. City of Chicago, 239 Ill. 414, 423, 88 N.E. 194 (1909).
The fetus here was terminated as a result of Williams’ legal, voluntary consent to abort. There is no evidence in the record that the fetus was injured as a direct result of the car accident. The speculation of record that there was radiation injury to the fetus as a result of the emergency treatment to Williams was just that: speculation unsupported by expert testimony. Dr. Keller testified at his deposition that Williams had a viable pregnancy that could have gone full term. He testified, however, that there was a “risk” to the fetus due to radiation exposure. Although Dr. Keller cited studies performed on fetuses during the third trimester of pregnancy, he did not quantify the risk to the fetus here, which was only in the first trimester of development. Nor could he specifically identify the injury that the fetus might have suffered. “Although an expert may not guess, conjecture, or surmise as to a possible cause for the injury, an expert can testify in terms of possibilities or probabilities so long as the opinion is based on a reasonable degree of medical certainty.” Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 978, 702 N.E.2d 303 (1998). Nothing in this record indicates that physicians treating Williams testified or were prepared to testify that, based on a reasonable degree of medical certainty, the fetus had suffered an injury as a consequence of the accident or the hospital treatment of Williams that would give rise to a direct cause of action had death not ensued.
The majority’s proximate cause analysis and conclusion that the negligence of Manchester 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 there must have been an actionable injury to the fetus with recoverable damages that could have been maintained had death not intervened. That is the fault line I perceive in the scholarly analysis of the majority, and for that reason I respectfully dissent from this humane and compassionate opinion.
The public policy implications lurking below the surface in this case are also a matter of concern. If there is to be a cause of action in the name of the fetus based on this kind of case — an undesired but possibly prudent therapeutic abortion for the sake of the mother’s heath — the scope of that action should be addressed by the legislature. I believe the order of the circuit court granting summary judgement to Manchester on Williams’ wrongful death claim should be affirmed.