Seef v. Sutkus

583 N.E.2d 510, 145 Ill. 2d 336, 164 Ill. Dec. 594, 1991 Ill. LEXIS 107

• Court: Illinois Supreme Court
• Decided: November 21, 1991
• Docket: Docket Nos. 71115, 71118
• Status: Published

Opinions

JUSTICE HEIPLE

delivered the opinion of the court:

This medical malpractice action arises from the stillbirth of a 38-week-old viable fetus. Plaintiffs Marilee and Michael Seef, the parents of Baby Boy Seef, brought suit in the circuit court of Cook County under the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.) against defendants Frank Sutkus, M.D., and Ingalls Memorial Hospital, alleging that the death was caused by negligent failure to monitor the condition of the fetus and timely perform a caesarean section. The circuit court dismissed that portion of the plaintiffs’ complaint seeking damages for parental loss of society. The appellate court reversed. (205 Ill. App. 3d 312.) This court granted the defendants’ petitions for leave to appeal solely on the issue of whether there can be recovery for loss of society of a stillborn child.

We are persuaded that both the language of the Wrongful Death Act and existing Illinois case law support a finding that parents may maintain a cause of action to recover damages for the loss of their stillborn child’s society. The Illinois Wrongful Death Act permits an action for damages whenever the death of a person is caused by a wrongful act or neglect and if the person injured, had he survived, could have brought an action for damages. (Ill. Rev. Stat. 1989, ch. 70, par. 1.) The Act further provides that “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death.” (Ill. Rev. Stat. 1989, ch. 70, par. 2.) The Act additionally states in relevant part as follows:

“§2.2. The state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default.” (Ill. Rev. Stat. 1989, ch. 70, par. 2.2.)

Thus, under the Wrongful Death Act an unborn fetus is recognized as a “person” and parents may recover damages for “pecuniary injuries” resulting from the death of the unborn fetus.

Illinois law has recognized that pecuniary losses encompass loss of society damages for many facets of family relationships. (Elliot v. Willis (1982), 92 Ill. 2d 530.) Further, this court in Bullard v. Barnes (1984), 102 Ill. 2d 505, held that parents of a wrongfully killed minor child are entitled to a presumption of injury in the loss of the child’s society. We find no valid reason or distinction to deny similar recovery for the death of a viable fetus.

In Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, this court recognized that the Wrongful Death Act gives parents the right to maintain an action for damages for the negligently caused death of a viable fetus. In so holding, the court in Chrisafogeorgis quoted from the case of Stidam v. Ashmore (1959), 109 Ohio App. 431, 434, 167 N.E.2d 106, 108, which stated:

“We are unable to reconcile the two propositions, that if the death occurred after birth there is a cause of action, but that if it occurred before birth there is none. ***

Such a distinction could lead to bizarre results. Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither.”

Likewise, logic requires that if we allow loss of society damages for infants, we allow such damages where the nearly full-term child dies before birth. Thus, we hold that a rebuttable presumption for loss of society exists for the wrongful death of a stillborn child.

Accordingly, we affirm the judgment of the appellate court.

Judgment affirmed.

JUSTICE BILANDIC took no part in the consideration or decision of this case.