SIXTH DI VISI ON March 16, 2007

No. 1-05-2126

MICHEL LE WIL LI AMS, Individually

and as ) Appeal from the Special Administrator of the Estate of BABY DOE, ) Circuit Court of Deceased, ) Co ok Co un ty. ) Plaintiff -Appella nt, )

) v. ) No. 03 L 000863 ) JOHN C. MANC HESTER, ) Honorab le ) Jennifer Duncan-Brice, Defendant-Appellee. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: This is an appeal pursuant to Supreme Court Rule 304(a) (155 I ll. 2d R. 304(a)) by plaintiff, Michelle Williams, individually, and as special administrator of the e state 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. Specific ally, Williams contends that the circuit court erred when it gra nted summary judg

ment to Manchester on her claim under the Wrongful Death Act (740 I LCS 180/1 (West 2002)) for Baby Doe's death which came about af ter she termi nated he r preg nancy as a res ult, she c ontends, o f injurie s Manche ster ca used. Willia

ms further contends that the c ourt err

ed in gr anting s ummary judgmen t to Manch ester on

her cla im for Ba by D oe under

the Surviv al Act (7 55 IL CS 5/27-6 (

West 2002) ). For the followi ng rea sons, we reverse the gra

nt of summary judgme

nt to Manchester on the wrongful death count, but affirm the grant of summary judgment on the survival count.1-05-2126

-2- FACTUAL BACKGROU ND On January 22, 2003, Williams filed a three-c ount complaint in the circuit court. The complaint alleged that she was a passeng er in a car struck by Manchester's car on Octobe r 15, 2002, at the intersection of Montrose and Western Avenues in Chicag o. Among other acts of negligence causing

the collision, plaintiff alleged that Manchester failed to y ield the right-of-way and turne d left in f

ront of th e car in

which Willia

ms rode when it was u

nsafe to do so. I n the firs t count of the complaint, Williams sought recovery for her own injuries on account of Manch ester 's alle ged negl igence. In the se cond c ount , Wil liam s alle ged tha t she w as carr ying a child who ultimately died as a re sult of the collision caused by Manc hester and sought to recover for her child's wrongf ul death a s administr

ator of B aby

Doe's e state. F inally , in the thir d count, Williams, pleading for herself and Baby Doe, sought recovery

for Manchester's alleg ed negligent infliction of emotional distre ss. As sha ll be more

fully discusse d below, Wil liams subse quently 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 deny ing all pertinent allegations. He further filed a th ird-par ty c omplaint a

lleging that Miche lle Popec , the driv er of the car in wh ich Williams was a passenger, cause d the collision through her own negligent dr iving. Popec, in turn, answered Manchester's c omplaint, denying a ll pertinent allegations. Manches ter ultima

tely filed a mo tion for p artial su mmary judgmen t attacki ng William s'

wro ngf ul dea th and neg li gen t i nfl ict io n of emo ti ona l d is tre ss cou nt s on Nov emb er 2 9, 2 004 . In the motion, he argued that no wrongful dea th action for Baby

Doe could lie because it was not1-05-2126

-3-

his negl igence

that was t

he proxima

te cause of its dea th. Manchester c ontended : "Neither the car acc ident, 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 de cision to undergo [an] abortion procedure. *** Plaintiff elected to have an abortion so that she could underg o 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." Manches ter arg

ued that Wil liams' neglig ent infliction of emotional dist ress cla im must also

fail for lack of causation, and that, further, she c ould present no proof of actionable emotional distress s ince she

never so ught tre atment for that all eged d istress. Will iams c ount ered th at, bu t for m edical consi derati ons s temm ing fro m Manc heste r's negligence, she would not have te rminated the pregnancy

, making his negligence the c ause-infact of Baby

Doe's death. Williams disputed that, under the circumstances of incre ased medical risks to Baby Doe

and herself in maintaining the pregna ncy, her a bortion could be characterized as "ele ctive." Williams fur ther ar gued th at the ter

mination of

the preg nancy was a re asonably foreseeable result of his neglig ently causing the collision, which would establish his negligence as the proximate cause of Baby Doe's death. In the ir summar

y ju dgment p leading s, both par ties reli ed on the d

eposition s, taken i

n discover y, o f Williams a

nd Dr. Jame s Keller

to support

their re spective

positions. Those1-05-2126

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depositions revealed the following pertinent facts. In her deposition, Williams testified that she suffered a f ractured pelvis and hip in the crash and was taken for treatment to I llinois 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, thoug h the baby itself wa s unharmed in the collision. Dr. Kirby, a

n emergency

room physician, Dr. B eigler, an orthopedic surge on, and Dr. George, an obstetric ian-gy

necologist, infor

med her t hat, bec ause her

pelvic bone was f

ractur ed, they could not be certain that she could maintain the pregnanc y. I f 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 del ivery. In that event, "[t ]hey couldn't prom ise that [ she] woul d ever walk right ." The doct ors also to ld her tha

t the X-r ay s taken of

her in the

emerg ency

room coul d 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 pe

rformed 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 prepa re for the baby

's arrival, purchasing a bumpe r set and baby c lothes. She cried "a lot" in the hospital, including around the time she unde rwent the abortion. Dr. James Keller, a high-risk obstetrician-g ynecologist, also gave a deposition in the case.1-05-2126

-5-

Dr. Keller testified that he met Williams during his rounds at I llinois Masonic and consulted on her c are, but di d not a

ctua lly prov ide a ny trea tment . As a

consultin g phy sicia n, he was " [t]o make sure that [Williams] had as much information as possible, [and] to make sure that the orthopedic surgeon understood the releva nt issues, so that they could make a de cision as to what the best c ourse of

action wo

uld be." The I llinois Mas onic doct ors' co unseling 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. Ke ller explained that "our overall goal [was] to be as nonguiding as possible." Accord ing to Dr . Keller , at the time he con sulted on her car e, Williams had a viab le pregnancy

that coul d have g one to ter m. He expla

ined, how ever: "[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 carrie d 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. Ke ller 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 y ou won't be able to say , well, this is what would happen1-05-2126

-6-

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 geneti cist. He s tated, however, that ther e was " theoret

ically enough radiation [in this ca se] to cause a problem," citing to studies in which third-trimester f etuses experienced increased risks of childhood leukemia after only

limited expo sure to r

adiation . Moreove

r, had Willi ams elected to delay the surg ery and to c ontinue the pregnancy, she would have exposed Baby Doe to additional radiation through her ongoing tr eatment. Speaking genera lly, Dr. Keller ide

ntified the risks of fetal radiation exposure to be the incorrect development of or gans and "childhood and adulthood malignancies." At one poi

nt in his de

position, d

efense counsel a sked Dr. Keller t o deciphe r his consultation notes. In one note, Dr. Keller recorded "Patient would like to continue preg nancy but not at r

isk to her long-te rm outcome ." I

n another, he wrot

e: "Spoke with attending ortho. There is no gua rantee of good outcome regardless of immediate surg ery, dela yed second tr

imester 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 immedi ate surg ery with fetu s at risk f

or both loss as we ll as long -term pr oblems due

to radia tion/medic ine which

would1-05-2126

-7- be di ff ic ul t t o q ua nt if

y. Long discussion with patient and father of the baby. The

y understand all issues. I will put through PEC papers." Dr. Keller explained that "PEC" referr ed to the hospital's perinatal ethics committee. The health care sy stem of which Illinois Masonic was a part ha d a policy not to perfor

m elective abortions. The hospital would only perf orm abortions when there was "significa nt risk" to either the child or mother. The circ uit court g

ranted t he motion f

or summar

y ju dgment a s to the wr

ongful d eath count, but denied the motion as to the negligent infliction of emotional distress count, in a written order, on March 11, 2005. With respect to the wrongf ul death count, the circuit court stated: "[B]ased on the express language of the Wrongful Death Act, Plaintiff cannot maintain a cause of action on behalf of he r fetus. In establishing proximate c ause, the

Act does not take i nto consid

eration the rea sonable foreseeability

of an injury or de ath, but, rather focuses primarily on whether a defendant's conduc t actually ca

used the injury or dea

th. Here, the ev idenc e estab lish es tha t, su bsequ ent to the car accide nt, P laint iff's fetus wa s uninjure d and viab le. Thus, Plaintiff could hav e continu

ed with the preg nancy . Howeve

r, rathe r than continue wit

h the pre gnancy a

nd wait until later to address her own injuries, Plaintiff chose to receive medica l treatment at the sacrifice o f her fetus, t hereby, terminatin g her pregnancy."1-05-2126

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The cour t certif ied its ord

er as ap propria te for int erlocut ory appeal u nder Supr eme Court

Rule 304(a). 155 Ill. 2d R. 304(a). On March 24, 2005, Williams moved the circuit court to reconsider its grant of summary judgment on the wrongful death count and fur ther moved to file an amended complaint. I n an order entered that same day , the circuit court granted Williams leave to file the amended ple ading and indic ated tha

t it would e ither de

ny t he motion f

or reconsidera

tion or ad vise def endant to respond a t the next sta

tus date o f April 11 , 2005. The court fu rther or dered that "Plain

tiff's t ime in whi ch to f

ile a n otice of app eal pu rsuan t to R ule 30 4(a) st ays until the Co urt ru les on Plai ntiff 's reconsideration." On March 28, Williams filed a proposed fourth count of her complaint under the Survival Act on behalf of Baby

Doe. The new count alleged that, on ac count of Manchester's neg ligence, Baby D oe "suffered severe and permanent bodily injurie s including radiation and medication exposure p rior to *** death." The only action ta ken at the April 11 st

atus hea ring wa s to contin

ue the ma tter until April 13, 2005. At that time, the court denied Williams' motion for reconsideration and "indicated [tha t Rul e] 30 4(a) l anguage w ill b e grante d pend ing th e outc ome of defend ant Ma [n] chest er's motion fo r summary judgment o n count IV, and the refore [thi s court] ret ains juris diction. " Manchester subsequently moved for summary judg ment on the new survival count on May 4, 2005. Manche ster argued that Baby Doe, as an unborn person, was not a "per son" as contemplated by the Survival Ac t. Moreover, Manchester arg ued that Williams' claim that Baby Doe suffered injury

was "purely

speculative." Williams responded that Illinois law rec ognized1-05-2126

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the creation of an increased risk of f uture injury as compe

nsable in damages. She further contended that Illinois, gene rally, rec ognized the right of fetuses to be born fre e from harm and that, the refore , Baby

Doe shoul d be cons idered a "person" unde

r the Act . In s

upport of her cla im, Williams re lied on Dr . Keller 's testim ony , as well a s the ave

rments " [b]ased on a

reasona ble degree of radiologic al certainty" contained in the attached affidavit of Dr. Mar k Edelman, a board-certified radiologist. Dr. Edelman a verred that "the radiation exposure the fetus was subjected to, prior to the pregnancy termination as a consequence of the injuries she had sustaine d in the au

tomobile c ollision, pr

oduced a n increa sed risk o f future

injury to the fetus, specific ally , neural

tube def ormity ." Dr. E delman f

urther g ave his op inion "th at as a consequence of the radiation exposure to Michelle Williams' fetus prior to the ter mination, and given the fact that the pr

egnancy was in its f

irst trime ster, the

fetus wa s damag ed in that it sustained *** an increased risk of future neura l tube deformity." Manchester replied that finding risk o f futu re inj uries compe nsabl e unde r the S urviv al Act would run co ntrar y to the Ac t's purpose of compensating for actual injuries suff ered prior to death. The circuit court granted Manche ster's motion for summary judgment on the Survival Act count on June 6, 2005. The circuit court ruled that fetuses were not considere d persons under the Act. The court fu rther ru led that a ny p otential f

uture inju ry was spec ulative in this case , and, in any event, c ould not be

consider ed an inju ry under the Act, sinc e the Ac t was mea nt to addr ess actual antemortem injuries c ausing p ain and suffering . The cou rt furthe r ruled that Williams provided no evidence of Baby Doe being conscious of and experiencing any pain and suf

fering. Finally, the cour

t ordered "Rule 304(a) langua ge is entered as to count I V (Survival Act) and1-05-2126

-10-

counts II and II I (wrongf ul death and negligent infliction of emotional distress). (Counts I I and III respectivel y granted & denied per previo us orders and continued u ntil ruli ng on Count IV)." On June 14, 2005, Manchester moved the court to modify its previous orders of March 11 and June 6 nunc pro tunc to include specific language indicating that the court had made the specific finding s requir

ed for in terlocu tory appeal u nder the rule, ra ther tha n merely refer ring to Rule 304(a). The circuit court ultimately entered an agree d order to that effect on June 14, 2005. However, only

two days later, the

court struck its June 14 order and further stated that the "March 11 and June

6, 2005 or

ders ar e final a s of June 6, 2 005. The c ourt find s no just re ason to delay enforc ement or

appeal o f the ord

ers, with the time f

or Plaintif

f to file a n appea l pursuan t to Supreme Co urt Rule 30 4(a) on both orders beginni ng to run on J une 6, 2005. " On June 27, 2005, Williams filed an "Emergency Motion to Correct Order of April 13, 2005." That motion stated:

"1. On March 11, 2004 the Court granted De fendant's Motion for Summary Judgment as to Count II of Plaintiff's Complaint. The court entered a 6 page ty

ped order detailing its ruling, and a one pa ge order written by the counse l for Defendant granting Supreme Court Rule 304(a) language. *** 2. Subsequently, Plaintiff filed a Motion for Reconsider ation which was denied on April 13, 2005. ***. At that time the Court indicated that it wou

ld stay the entr y of Supreme C ourt 304( a) lang uage a s to its Order o f Sum mary Jud gment a s to C ount II until af ter th e Defen dant's1-05-2126

-11- Motion for

Summary

Judgment a s to Cou[n]t I V was dec ided so as

to avoid a pi ecemea

l appeal

. 3. The Order entered on April 13, 2005 was incompletely written and stated : 'that the court has indicated that [Rule] 304(a) langua ge will be granted pending the outcome of D efendant Manchester's Motion for Summary Judgment on Count I V and therefore retains jurisdiction.' ***. 4. The co urt['s] an d [the] part

ies['] inte ntions wer

e to stay Supreme Court Rule 304(a) language until all of the motions were resolved on June 6, 2005. *** To effectuate this, the April 13, 2005 Order should have contained language striking the Supreme Court Rule 304(a) language from the handw

ritten Ma rch 11, 2 005 Orde

r but did no t. WHEREFORE, Plaintiff request[s] the Court [to] enter an Order nunc pro tunc correcting the April 13, 2005 Order to include the follo wing: 'The Su preme C ourt [ Rule] 304(a ) langu age from the Co urt's Order of March 11 , 2004 is h ereby stricken.' " The circuit court granted the orde r. The following day , June 28, 2005, Williams filed her notice of appeal. In the notice, Williams stated that she was appealing from the order "e ntered on March 11, 2005 made final and appealable by

order dated June 16, 2005," the "order ente red on April 13, 2004, corrected nunc pro tunc on June 2 7, 2005," and the "order entere d on June 6, 2005." ANA LYSIS1-05-2126

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On appeal, Williams contends that "[b]ut for [Manchester's] negligence [she] would not have be en forc ed to unde rgo a te rmination [of her pr

egnancy]. And that i

t is reasonably foreseeable that neglig ence which results in injury to a pregnant woman may result in the forced terminat ion of her unborn child." She

further argue s that her

decision to abort w as fore seeable

in light of injuries to Baby

Doe, specifically

radiation exposure from X-rays, occurring as a result of Manches ter's neglig ence. Wit h respec t to the sur

vival cou nt, Williams c ontends that fetuse s, such as Baby

Doe, are "persons" unde

r the Survival Act and that Baby Doe's potential for future injury was cog nizable un

der the Act. Williams , thus, con tends tha t the summa

ry judgmen ts granted to Manchester were erroneous. Manchester, on the other hand, c ontends that summary judgmen t was prop er on the

wrongf ul death c ount beca

use, as a matter of law, it wa s Williams' voluntary decision to undergo an abortion that was the proximate cause of Baby Doe's death, not his negligence. Manchester further contends that summary judgment was also appropriate for the survival action because Baby Doe was not a person as contemplated by the Survival Act and because there was no proof of a ny pain and suffe

ring to Baby

Doe prior to death. Befor e we add ress the se substa

ntive con tentions, however , we per ceive th e need to

first determine our jurisdiction over this matter with respect to the timeliness of this appeal. See Department of Public Aid v. Lekber g , 295 Ill. App. 3d 1067, 1069 (1998) ("[W]e have an independent duty to ensure our j urisdicti on is proper ") ; see also O'Donnell v. Sears, Roebuck & Co. , 71 Ill. App. 3d 1, 5-6 (1979) ("N one of the parties have raised the jurisdiction of this court as an issue. However, the parties cannot conf er jurisdiction where none exists"). A. Jurisdiction1-05-2126

-13-

We raised the question of our jurisdiction over this matter at oral argume nt, noting our concern about the timeliness of the notice of appeal fr om the challenge to the summary judgment granted against the wrong ful death count in light of Williams' emergency motion on June 27 which sought to have the April 13 order modified nunc pro tunc to specif ically strike the circuit court's Rule 304(a) finding in the Marc h 11 order. The filing of this emerge ncy motion suggested that Williams herself was concer ned that the 30-day

deadline for filing her notice of appeal might have started on March 11 a nd that she might have missed that deadline. At oral argument, the parties both asserted that this court had jurisdiction and a greed to file a joint supplemental brief in support of our jurisdiction. We received the parties' joint submission, and after reviewing their brief and conducting our own review, we a re now satisfied that our jurisdiction is properly gr ounded. Supreme C ourt Rule 3 04(a) pr ovides: "If multiple parties or multiple claims for re lief are involved in an action, an appeal may

be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delay ing either enforcement or appeal or both." 155 I ll. 2d R. 304(a). In the event of such an e

xpress written finding from the circuit court, the "time for filing a notice of appeal shall be as provided in Rule 303." 155 Ill. 2d R. 304(a). Rule 303, barring entry of a posttrial motion, provides a window of 30 days in which to file a notice of appeal; in the event of the filling of a posttrial motion within those initial 30 days, the time for filing a notice of appeal1-05-2126

-14-

is expanded to 30 days bey ond the ruling on the posttrial motion. 210 Ill. 2d R. 303(a)(1). See also Greer v . Yellow Ca

b Co ., 221 I ll. App. 3d

908, 913 ( 1991) (" The tria l court ** * erred

in its belief that upon entry

of a proper 304(a) finding it would be divested of its jurisdiction to hear the motion f

or reconsidera

tion [timely

filed with

in 30 day s of the f inding]" ); Stroud v. News Group Chicago, Inc ., 215 I ll. App. 3d 1006, 1010

(1991) ( "After

a trial c ourt has e

ntered a Rule 304(a) finding that there is no just reason to delay enforcement or appeal of a fina l judgment

and the time to appeal has expired, the cour t loses jur isdiction t o modify the orde r" (emp hasis added)). Thus, Williams' filing of her motion to reconsider the grant of summar y judgment on the wrongful death count, filed on March 24, 2005, 13 day s after the March 11 order g ranting summary judgme

nt and including Rule 304(a) languag e, tolled the time for filing a notice of appeal unti l the d eterm inati on of t hat rec onsi derati on mo tion and pr eserve d the c ircui t cour t's ability to modify

its origi nal orde r. At the t

ime the ci rcuit co urt ruled on the motion to reconsider, April 13, 2005, the court evinced its desire to cha nge the appealability

of the grant of summary judgme

nt on the wrongful death count by stating in its order that "[Rule] 304(a) language will be gr

anted pending the outcome of defenda nt Ma[n]chester's motion for summary judgmen t on count I

V, and the

refore [this court

] retains j urisdicti on." Thi s was a change within the circuit court's power to make since it still had jurisdiction over its prior order . See, e.g. , Zekman v. Direct American Ma rketers, Inc ., 182 Ill. 2d 359, 367 (1998), and Edward E. Gillen Co. v. City

of La ke Fore st , 221 Ill. App. 3d 5, 10 (1991) (where in the reviewing courts noted without criticism or comment that the circuit court vacated previously entered Rule 304(a)1-05-2126

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language and subsequently reviewed the orders after they became final under Rule 303). Hence, the April 13 order itself, as originally written, was sufficient to vacate the circuit court' s previous Rule 304(a) finding on March 11. The nunc pro tunc elimination of the March 11 Rule 304(a) finding, through the June 27 emergenc y motion, was not actually necessary

to ensure that the 30 days for f iling a notice of appeal was not counted from Mar ch 11. The 30-day

period for filing Williams' notice of appeal, at the ea rliest, would have commenced with the entry of the order granting summary judgment to Manchester on the

sur vi val cou nt on J une 6, 2 005 , wh ich als o st ate d "R ul e 30 4(a ) la ngu age is ent ere d as to cou nt IV (Survival Act) and counts II and II I (wrongf ul death and negligent infliction of emotional distress)." The circuit court then appropriate ly modified its previous order to include the required specific "appealability " language in its June 14 order. See In re Appl icati on of t he DuP age County Collector , 152 Ill. 2d 545 (1992). Williams notice of appeal, filed on June 28, was obviously within 30 day

s of the entry of

the June 14 order. Therefore, the notice was timely and properl y c onferr ed jurisd iction on th

is court. We turn, th en, to the merits of the appe al. B. The Me

rits: Wrong ful Deat

h Summary judgment should be g ranted when "the pleadings, de positions, and admissions on file, together with the affidavits, if any , show that there is no genuine issue as to any material fact" and the " party

is entitle d to judgment as a matter of law." 7 35 IL

CS 5/3-1005 (c) (Wes t 2002). However, "[S]ummary judg ment is a drastic measure and should only be granted [when] the movin g party's right to judgment is clear and free from doubt ." Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102 (1992). Thus, all evidence be fore a court1-05-2126

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considering a summary

judgment motion must be considered in the light most favorable to the nonmoving party. In re Estate of Hoove r , 155 Ill. 2d 402, 410-11 (1993). The court's function in resolving a summary judgment motion is not to try factual disputes, but merely to determine if a ny material fa

ctual disputes exist. Gilbert v. Sycamore Municipal Hospital , 156 Ill. 2d 511, 517 (1993) . Summary judgmen t should be

denied not only if there are disputed facts, however, but a lso if reasonable people could draw differ ent inferences from the undisputed facts. Wood v. National Liability & Fire I nsurance Co. , 324 Ill. App. 3d 583, 585 (2001). We revie w gran ts of summa

ry judgmen t de novo . Es pi no za v. El gi n, Jo li et & E as te rn Ry. Co. , 165 Ill. 2d 107, 113 (1995). The movant bears the initial burden of production in a motion for summary judg

ment. Williams v. Covenant Medical Center , 316 Ill. App. 3d 682, 689 (2000). A defendant moving for summary judgment may me et its burden of production either by presenting evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff will be unable to prove an element of its ca use of action. Williams , 316 I ll. App. 3d at 688. Un

til the def endant su pplies fa cts that w ould demon strate it s entitleme nt to judg ment as a matter of law, the p laintiff

may rely on the ple adings t

o creat e questions of material fact. Williams , 316 Ill. App. 3d at 688. However, should a de fendant present such facts, the burden then shifts to the plaintiff to present some evide nce allowing the imposition of liability on the defendant and supporting e ach element of his cause of action, thereby de fining a material issue of fact to be deter mined at trial. Williams , 316 Ill. App. 3d at 688; Wortel v. Somerset Industries, I nc ., 331 I ll. App. 3d

895, 899- 900 (2002 ); Garcia v. Nelson ,1-05-2126

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326 Ill. App. 3d 33, 38 (2001). The Wrong ful Deat

h Act pro vides: "Whenev er the de ath of a p erson sha ll be cau sed by

wrongf ul act, neglec t or defa ult, and th e act, ne glect or defau lt is such a s would, if

death had not ensued, have entitled the party injured to maintain an action and recover damages in re spect thereof, then and in every such case the person who or company or

corporation which would have been liable if death ha d not ensued, shall be liable to an action for damage s, notwithstanding the death of the person injured ***." 740 I LCS 180/1 (West 2002). The "pu rpose of the [Wrong ful Deat

h] Act is to c ompensat

e the sur viving sp ouse and

next of kin for the pecuni ary losses sustain ed due to the decedent's death ." Beetle v. Wal-Ma

rt Associ ates, Inc. , 326 Ill. App. 3d 528, 532 (2001). See also Foster v. Kanuri , 241 Ill. App. 3d 677, 681 (1992) ("The legislative intent of the Wrong ful Death Act is that the claims brought are those of the individual beneficiaries. The claim under the survival statute is that of the de ceased which arose during his life and survived his death") . Aside from the additional element of the occurrence of death, the ele ments of a wrongful death claim are ide ntical to those of a common law negligence cla

im. Compare Lea

vitt v. Fa rwell Tower L

td. Partne rship , 252 Ill. App. 3d 260, 264 (1993) ("In or

der to maintain a claim under the Act, plaintiff must demonstrate: (1) defenda nt owed a duty to deced ent; (2) d efenda nt breac hed that d uty ; (3) the b

reach o f duty proximately caused dec edent's death; and pecuniary damages arising theref

rom to persons designated under the Act"), w ith Behrens v. Harrah' s Illinois Corp. , 366 Ill. App. 3d 1154, 11561-05-2126

-18-

(2006) ( "To pro

perly plead an action ba sed in neg

ligenc e, plaint

iff must a llege f acts suf ficient t o establish that defendant owed a duty of care to plaintiff, that defendant brea ched that duty, and that the breach was the proximate cause of plaintiff' s injuries"); see also Beetle , 326 Ill. App. 3d at 540 (B owman, J., d

issenting ) ("A w rongfu l death a ction re quires pr

oof of the same elementsduty, breac

h of the duty, proximate cause a nd damages-as a common law negligence action, a classic action in tort"). 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 c ausing 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 superc eding cause of the fetus'death thereby relieving the original tortfeasor of liability for the fetus' death. Though the c ase involves an abortion, a medical procedure that can invoke controve rsial moral, philosophical, and political considerations of theology , philosophy, morality , privacy, a nd public policy, since the ac tions taken by Williams we

re leg al and me dically

endorse d, it is ag

reed tha t the rig ht of plain

tiff to

recove r should be

determined by

gener al princ iples of proximate c ause as a pplied wit

h respec t to interve ning huma

n agencies. As t

he defe ndant Man

chester states in h

is brief: "It

must be cle arly understo od that [he ] in no way sugge sts any

moral issu

e here w ith the opti on Williams e lected to take. This discussion instead focuses entirely upon the legal issue of proximate cause of the death of the fetus, and the validity of a wrongful death claim ag ainst [him] under the1-05-2126

-19-

circumstan ces."

" Proximate cause 'is one which produces the injury through a natural and continuous seque nce of e vents unbro ken by any effec tive i nterv ening c ause. ' ” Cannon v. C ommonwea lth Edison Co., 250 Ill. App. 3 d 379, 381 (1 993), quot ing Novande r v. City of Morris , 181 Ill. App. 3d 1076, 1078 (1989). "Proximate cause" contains two elements: "c ause in fact" and "leg al cause." Young v . Bry

co Arms , 213 Ill. 2d 433, 446 (2004). Cause in fact is deter mined by analyzing "whether the i njury would have occu rred absent t he defendant's co nduct." Young , 213 Ill. 2d at 446. L egal cause is a question "of public policy -how far should a defendant's leg al responsib ility extend fo r conduct th at did, in fact, cause th e harm?" Young , 213 Ill. 2d at 446. See also McCraw v. Cegielski , 287 Ill. App. 3d 871, 873 (1996) ("Proximate cause r equires the plaintiff to show tha

t the def endant' s neglig ence wa s (1) the actual c ause or t

he cause in fact of his injury, i.e. , but for

the defendant's conduct, the acc ident would not have occurred; and (2) the legal cause of his injury , i.e. , the defendant's conduct was so closely tied to the plaintiff's injury that he should be held legally responsible for it"). Generally , the "proper inquiry

regarding leg al cause in volves an assessme nt of for eseeab ility , *** whet

her the i njury is of a ty pe that a reasonable per son would s ee as a likely result o f his conduc t." Young , 213 Ill. 2d at 446-47. See also Restatement (Second) of Torts §435(2) (1965) (" The actor's conduct may be held not to be a legal cause of harm to another w here after the event and looking ba ck from the harm to the actor's neglige

nt conduct, it appears to the court highly extraordinary that it should have broug ht about the harm"). There may

be more than one cause of an injury . See Nelson v. Union Wire Rope Corp. ,1-05-2126

-20-

31 Ill. 2d 69, 88 (1964) ("it is fundamental in the law of negligence that there

may be more tha

n one proxima

te cause of injury"); Jeffe rson v . Cit y of Chica go , 269 Ill. App. 3d 672, 676 (1995) ("Once it is said that the 'causal conne ction' may be unbroken, a jury

can consider that there may be more than one proximate cause of an injury "). For liability to attach, it is sufficient if a tortfea sor is a cause of injury , or, put differently , a substantial factor in causing the injury . See Young , 213 I ll. 2d at 44 6 (holding that if " there a

re multipl e factors that ma y ha ve combined to cause the injury , [a defendant may be a cause in fact of the injury if his] conduct was a material element a nd a substa

ntial fac tor in brin

ging a bout the in

jury "); Nelson , 31 Ill. 2d at 88 (" one is li ab le fo r i ts ne gl ig en t c on du ct wh et he r i t c on tr ib ut ed in wh ol e o r i n p ar t t o t he pl ai nt if f' s i nj ur y, so long as it was one of the proximate causes of injury "); McClure v . Hoopest on Gas & Electric Co ., 303 Ill. 89, 104 (1922) ("The ne gligence of the defe ndant *** is the proximate cause [of injury] *** if it can be properly said to have produced the result complained of, in natural and continuou s sequenc e, unbro ken by any efficie nt interve ning ca use"); Seith v. Comm

onwealth Electric Co. , 241 Ill. 252, 259 (1909) ("The ne gligent act or omission must be the cause which produces the injury, but it nee d not be the sole cause, nor the last or nearest ca use. It is sufficient if it concurs with some other cause acting at the sa me time, which, in combination with it, causes the injury, or if it sets in motion a chain of circ umstances, and operates on them in a continuous sequence, unbroken by

any new or

independent cause"); see also Pullman Palace Car Co. v. Laack , 143 Ill. 242, 260 (1892) ("If *** the wrong of appellant put in motion the destructive agency , and the result is directly a ttributable thereto, and there was no intervention of a new force or power of itself sufficient to stand as the cause of the mischief, the negligence of a ppellant1-05-2126

-21-

must be considered the proximate cause of the injury , if it could have been foreseen, by the exercise of ordinary

care, that injury

might or would result from the negligenc e"). A tortfeasor may

cease to be the proximate cause of injury based on an intervening cause. See Bentley

v. Saunem

in Townshi

p , 83 I ll. 2d 10, 15 (1980) ( "The ne glige nce of a defenda nt will not constitute a proximate cause of a plaintiff's injuries if some intervening act supersedes the defenda nt's neg ligenc e"); Elliott v. Will iams , 347 Ill. App. 3d 109, 113 (2004) ("The negligence of a defendant will not constitute a proximate cause of a plaintiff's injuries if some intervening act supercedes the defendant' s negligence") . " 'An intervening ef ficient cause is a new and in de pe nd en t f

or ce wh ic h b re ak s t he ca us al co nn ec ti on be tw ee n t he or ig in al wr on g a nd th e i nj ur y, and itself b ecomes the di rect and imm ediate-that is, the pro ximate-ca use of an inj ury.' " Laack , 143 Ill. at 261, quoting J. Bishop, Bishop on Non-Contract Law, §§ 42, 835, 836 (1889). However, it has long been settled that "not eve ry intervening

act sufficiently insulate s the initial wrongdoer from liability . The causal connection is not broken by such an act if the intervenin g act was itsel f foreseeable by the firs t wrongdoer." Bay lie v. Swif

t & Co ., 27 Ill. App. 3d 1031, 1046 (1975). Accord Felty v. Ne w Berlin Transit, Inc

. , 71 Ill. 2d 126, 131 (1978) ("A forese eable in

terveni ng forc e does no t break t

he chain of lega l causat ion"); see also Easley v. Apollo Detective Agency , Inc. , 69 Ill. App. 3d 920, 938 (1979) (quoting the Restate ment (Second ) of Tort s §442 (19 65) in hold ing that to deter mine whet

her an in terveni ng forc e was als o a superceding cause cour

ts should consider " '(a) the fac t that its intervention brings about harm different in kind from that which would otherwise have resulted f rom the actor's neglige

nce; (b) the fact that its operation or the consequences there of appear after the event to be e xtraordinary1-05-2126

-22-

rather than normal in view of the circumstances e xisting at the time of its operation; (c) the fact that t he int erveni ng force is op erati ng ind epend ently of a ny situat ion cr eated b y the acto r's negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act; (e) the fact that the intervening force is due to a n act of a third person which is wrongful towar d the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the inter vening force in motion' "). The degree of fore seeability require d for liability to attach to a def endant has been char acte rized simpl y t o req uire that t he re sulti ng ha rm be "na tura l," i n ret rosp ect, in the

context of the risk created by

the tortfeasor's wrongdoing . As our supreme court observed in Siemieniec v. Lutheran Gener

al Hospital , 117 Ill. 2d 230, 259 (1987): "The general rule of

damages in a tort action is that the wrongdoe r is liable for all injuries resulting directly from the wrongful acts, whether they could or should not have be en foreseen by him, provided the particular damages are

the legal and natural consequenc es of the wrongful act imputed to the defendant, and are such as mig ht reasonably ha

ve been anticipa ted. Remot

e, contin gent, or specul ative da

mages d o not fall w

ithin this general ru le." Or, as Professors Prosser and Keeton noted:

"The number and variety

of causes which may

intervene, after the negligence of the def

endant is an accomplished fact, are obviously without1-05-2126

-23- any limit whate

ver. I n the eff ort to hold

the defe ndant' s liability

within some reasonable bounds, the courts have been c ompelled, out of sheer necessity and in de fault of anything better, to fall back upon the scope of the original foreseeable risk which the defendant has created. The question is always one of w hether the defendant is to be relieved of responsibility, and the defe ndant's liability superse ded, by the subseque nt event. In ge

neral, this has been determined by asking whether the interve ntion of th e later c ause is a signific ant part

of the risk involved

in the defendant's conduct, or is so reasona bly connecte d with it that the responsibility should not be terminated. I t is therefore said that the defenda nt is to be h eld liable

if, but onl

y if , the inte rvening cause is 'forese eable. ' But her e *** this overwor

ked and u ndefine d word covers a multitude of sins. It is at least clear that in many cases recovery

has been allowed w

here the interve ning ca use was not one whi ch any reasona ble actor could be expected to anticipate or have in mind, but it is rega rded as 'norma l' to the situation w

hich the a ctor has create d. In

other words, althoug h the theory

of the ca ses is one

of fore seeabil ity, a conside rable elem ent o f hind sigh

t may have ente red i nto it s practic al ap

plica tion. " W. Keeton, Prosser & Keeton on Torts §44, at 302-03 (5th ed. 1984)

. See also Felty, 71 Ill. 2d at 131 ("I t is not necessary *** tha t the precise nature of the intervening1-05-2126

-24-

cause be foreseen") ; accord Seith , 241 I ll. at 259 ( holding t hat, to be forese eable to

the first wrongd oer, the "prec ise form o f the injur y" does not ne ed to be f

oresee n; rathe r "whe n it occurs, it must appear that it was a natural and probable conseque nce of his negligence" ); Restatement (Second) of Torts §443 (1965) ("The interve ntion of a force which is a normal consequence of a situation created by

the actor's neglige

nt conduct is not a superseding cause of harm whic h such conduct has been a substantial factor in bring a bout"); Prosser & Keeton on Torts §44, at 306-07 ("It is perhaps a

pointless quibble over the meaning of a term to debate whe ther such normal intervening causes are to be c alled 'foreseeable.' They ar e at least foreseeable in the sense that any event wh ich is not a

bnormal ma

y r easonab ly b e expecte d to occur now and then, and would be reco gnized a s not high ly u nlikely if it did sug

gest itse lf to the a

ctor's mind. They

are clo sely and rea sonably

associa ted with th e immedia

te conse quence s of the de fendant's act, and form a normal part of its aftermath; and to that extent they are not foreign to the scope of the r isk created by the original negligence. For the most part they have be en called foreseeable by the courts; but that word obviously

has trav eled a long way

from its or

iginal me aning in

connec tion with th e risk created by

negligence")

. Courts and commentators have recognized victims' attempts to esca pe the danger the defendant put them in as a natural consequence of a defendant's origina

l negligence. See Prosser & Keeton on Torts §44, at 307 ("Thus defensive acts, such as the reasonable attempt of an individua l threate ned with h arm to esc ape it, a s by leaping from a ve

hicle or swerving aside wil l not relieve the original wrongdoer of liability, whether the a ct be instinctive or after time for reflection, and whether the resulting injury is to the person so seeking to escape, or to another" );1-05-2126

-25-

Restatement (Sec ond) of T orts §445 ( 1965) ( " If the actor 's neg ligent c onduct thr

eatens harm to another's person, land, or chattels, the normal e fforts of the other or a third person to avert the threatened harm are not a superse ding cause of harm resulting fr om such efforts"); Restatement (Second) of Torts §446 ("I f the actor intentionally or negligently

impedes the exercise of another 's rig hts or priv

ileges , the othe

r's nor mal efforts to rem

ove the im

pediment or to exer

cise the right or privilege notwithstanding its existence are not a superseding cause of harm re sulting from such efforts"). I

t is further recognized as foresee able that parties responding to the risks created and harms inflicted by the original tortfeasor may be negligent in their responses and may also, in turn, harm third parties. See Lang e v. Missou ri Pacifi c Railwa

y Co ., 208 Mo. 458, 106 S.W. 660 (1 907) ( affirm ing a ju dgment for th e plai ntiff where, in an a ttem pt to avoid a trai n's steam blown onto a passenger platform, she stepped onto a set of tracks in front of another, moving tr aincar ); Restate ment (Sec ond) of T orts §443, Reporter s Notes, Comment c , at 473 ("In order that the reaction of human beings to the stimulus of a situation be normal it is not necessa ry that the si tuation be such as to

make it jus tifiable

or reas onable" ); Restate

ment (Sec ond) of T orts §445, Reporter' s Notes, Comment a , at 475 (stating that the rule that the normal efforts of anothe r to avert the harm caused by a

defenda nt are no t a super seding c ause of harm "a pplies *** also where the harm is sustained by a third person who is attempting to avert the threatened ha rm, or, who, being

in the nei ghborhood

, is harme d by the e fforts made

to avert it " (emphasis added)); Restatement (Sec ond) of T orts §446 & Reporter 's Note s, Comment a , at 477 (s tating that the ru le that the normal efforts to remove a defendant' s impediment to another's "exercise [of] the right or privilege notwithstanding its existence are not a superseding cause of harm resulting from such1-05-2126

-26-

efforts " "app lies not on

ly w hen the pe

rson whos e right

or privile ge is imp eded inju res himse lf in his efforts to remove the im pediment or exerc ise his rig

ht or privilege n

otwithsta nding its existence, but also when his efforts result in harm to third persons"); 2 J. Mirza, Illinois Personal Injur y §2 03.29, at

233 (1996 ) ("Minor negli gence in the inte

rvening conduct o f the thir

d party is always re garded as foreseea ble on the part of the initial tortfeasor so as to invariably prevent that intervening conduct from being re garded as an 'e ffective' superceding cause"). Granted, however, an initial tortfeasor may be relieved from liability in the e vent that another party , respond

ing to the origina l dange r crea ted, act s wantonly

, maliciou sly , or so negligently

himself that he becomes the proximate cause. See Herzog v. Lexington Township , 167 Ill. 2d 288, 299 (1995) (holding that eve n if a municipality had bre ached a dutyto a plaintiffmotorist to adequately mark a curvy sec

tion of a road and to post a safe speed limit through the

curves , that judgm ent fo r the m unici palit y would ha ve been correc t base d on t he jur y's determination tha

t the plain tiff was the sole proximate c ause of h is own one

car cr ash); Fox v. Travis Re alty

Co ., 262 Ill. App. 3d 1071, 1075 (1994) ("If, however, Fox's injuries are more than 50% attributable to [negligence in] his own rescue ef forts [to save himself], he shall be barred from rec overing "); Wagner v. In ternational Railwa

y Co ., 232 N.Y. 176, 180, 133 N.E. 437, 437- 38 (1921) ("Danger invites re scue. *** The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoe r may not have f

oreseen the coming of a deliverer. His is accountable as if he ha d"); Prosser & Keeton on Torts §44, at 317-18 (" Yet there are other cases in which it seems equa lly clear that the de fendant should not be liable. What if A knocks B down and leaves B ly ing unconscious in the street, where B may be run over1-05-2126

-27-

by negligently driven a

utomobiles, and C, a personal enemy of B, discovers B there and intentionally runs B down? When the defendant excavate s a hole in the sidewalk into which

so me on e m ig ht fa ll , t he de fe nd an t m ay b e l ia bl e i f t he pl ai nt if f i s n eg li ge nt ly p us he d i nt o i t b y a stranger, but what if the plaintiff is pushed deliberately ?") Keeping these g eneral

principle s in mind, we

now turn to

examine mor

e factu ally analogous cases and the facts presented in the case at bar. The parties' and our own resea rch reveals only

one case expressly

permitting recovery

to a mother for the wrongful death of her unborn child subsequent to an abortion where the abortion

was a consequence of a t

ortfea sor's pr

eceding neglig ence: Shirley v. Bac on , 154 Ga. App. 203, 267 S.E.2d 809 (1980). However, this case appears fa ctually close to the ca se at bar and we find it persuasive. In Shirley , as in this case, a pregnant passeng er was injured in an automobile collision. The plaintiff-passenger subsequently underwent what was described as a " therapeutic abortion" based on both the injuries she received in the crash, as well the multiple pelvic X-ray s she received in the course of treating those injuries. Shirley , 154 Ga. App. at 203-04, 267 S.E.2d at 810. After determining that summary judgment was improperly granted to the defendants on the assumption that the fetus was not viable at the time of the collision ( Shirley , 154 Ga. App. at 203-04, 267 S.E.2d at 810-11), the Shirley court went on to address whether it was of any import that the plaintiff's child's death came a bout, at least in part, through the abortion. With a limited qu al if ic at io n, th e c ou rt co nc lu de d t ha t t he ab or ti on di d n ot pr ec lu de th e m ot he r' s r ec ov er y, stating: "the fact that the 'homicide' in question occurred at the time of the therapeutic abor tion1-05-2126

-28-

does not preclude [plaintiff] from maintaining this action if the trior [ sic ] of fact concludes that said abortion was necessitated because of injuries sustained a s a result of the negligence of [defendant s]." Shirley , 154 Ga. App. at 204, 267 S.E.2d at 811. See also Rottman v. Krabloonik, Inc. , 834 F.Supp. 1269 (D. Colo. 1993) (deny ing the defendant-restaurant' s and meat suppliers' motions to dismiss an expectant mother's wrongful death claim wher e she underwent an abortion following a parasitic infestation, alleg edly from the ing estion of defendant's tainted meat, that injured herself and her unborn child, without specifica lly addressing

the effect of the abortion on its rulin

g); Covelesk

i v. Bubni s , 535 Pa. 166, 634 A.2d 608 (1993) (precluding wrongful death recovery

, where a woman terminated her pre gnancy due to risks of fetal injury from a negligently

caused car crash, only

because the eight-week- old fetus was not yet ca pable of independent existence outside of the mother and was, therefore , not a "person" under Pennsy lvania' s wrong ful deat

h act); McGeehan v. Par

ke-Davis , 573 So. 2d 376, 377 (Fla. App. 1991) (reversing a summary judgment for defendants, where the pla intiff terminated her pregnancy

after r eceivin g a pre scription

for and i ngestin g drug s capabl e of prod

ucing b irth defect s, without warning

of that ri sk, for a

condition

she did not , in fact , have a nd stating : "in legal contemplation, an unborn fetus is not a person for the w rongful death of whom a tortfeasor is liable to its survivors for damages under the Wrongful De ath Act[;] . . . therefore, it is living tissue of the body of the mother f or the negligent or intentional tortious injury to which the mother has a legal cause of a ction the same as she has for a wrongf ul injury to any

other part of her body" ). Moreo ver, ap plying th e same ge neral p rinci ples p revio usly dis cusse d, a nu mber o f forei gn1-05-2126

1 We note tha

t Bendar and Ly nch , at leas t, might h ave bee n meritor ious wron gful de ath cases bu t for the n onrecog nition of u

nborn fe tuses as " persons" or "dec edents" under the ir states ' wrongful death acts. See Giardina v. Benne tt , 111 N.J. 412 , 545 A.2d 139 (1988 ); Endresz v. Friedberg , 24 N.Y.2 d 478, 248 N .E.2d 901, 301 N.Y.S. 2d 65 (196 9) (req uiring a live birth to support a wrongf ul death c laim, but a

lso allowi ng par ental re covery

for, among othe

r injurie s, emotional distress in the event of a stillbirth caused by negligence); acc ord McGeehan v. ParkeDavis , 573 So. 2d 376, 377 (Fla. App. 1991). We further note that there is no similar problem under Illinois' Wrongful De ath Act, however, as the statute specifically includes unborn fetuses as "persons" for whom survivors may recover. See 740 I

LCS 180/2.2 (West 2002) ("The state of gestat ion or dev elopment

of a huma

n being when an i

njury is cause d, when a

n injury takes ef fect, or at dea th, shall not forec lose maint enance of any cause of action un der the l aw of this

State arising from the d

eath of a human bei

ng cau sed by

wrongf ul act, ne glect or defau

lt"); se e also 720 IL CS 510/1 (West 2002) (" Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under [United States Supreme Court] decisions, the Genera l -29- courts have held that it should have been foreseea ble to a tortfeasor that his negligent ac tions might lead to a pregnant woman dec iding to terminate her pregnanc y for medica

l reasons. See Bendar v. Rosen , 247 N.J. Super. 219, 588 A.2d 1264 (1991), Deutsch v. Shein , 597 S.W.2d 141 (Ky . 1980); Ly

nch v. Ba y Rid ge Obst etrical & Gy necological Asso ciates, P.C. , 72 N.Y.2d 632, 532 N.E.2d 1239 (1988). Each of these cases, thus, allowed the w oman to be compensated for her injuries from the loss of the fetus, or in being put to the choice of whether to maintain or te rm in at e h er pr eg na nc y. 11-05-2126

Assembly of the State of I llinois do solemnly declare and f ind in reaffirmation of the longstanding policy

of this State, that the unborn child is a human being from the time of concep tion and is , theref

ore, a le gal per

son for pu

rposes of the unbor

n child' s right to

life and is entitled to the right to life from conception under the laws and Constitution of this State"). -30- In Bendar , the plaintiff was a passenger in a c ar that collided with another. As a result of injuries f rom the c ollision, the plaintif f rece ived five

X-ray s, which w ere per

formed w ithout a pelvic shield. The plaintiff subsequently found out that she was pregnant, in spite of a sterilization procedure her gy necologist was previously to have performed. I

n light of the risks of radiation to the fetus' well being, the fa ct that she would have to undergo a uterine stitch operation if she carried the child to term, as well as fina ncial considerations, the plaintiff elected to abort her pregnancy

. The plaintiff subsequently c laimed negligence ag ainst the drivers involved in the crash and a medical malpractice c laim against her former gy necologist. After a verdict in favor of the plaintiff, all of the defenda nts appealed. Bendar , 247 N.J. Super. at 224- 27, 588 A. 2d at 1267 -68. L ike in the instant ca se, the dr

iver-de fendant s asserte d that the ir negligence could not have pr oximately caused the plaintiff' s emotional injuries stemming from her decision to have an abortion. More specifica lly, they contended that factors unrelated to the crash, such as the necessity of another uterine stitch if she carried the c hild to term, caused the plaintiff to decide to abort; they further argued that they

could not have reasonably foreseen that the plaintiff would undergo X-ray s while unaware that she was preg nant. Bendar , 24 7 N. J. Super. at 229-30, 588 A.2d at 1269-70. The Bendar

court rejected the driver-defe ndants' arguments, however. The court1-05-2126

-31-

observed that "[t]o be a proximate cause *** conduct need only be a cause which sets off a forese eable se quence

of conse quence s, unbrok en by any superse ding ca

use, and which is a substantial factor in producing the particular injury " and that "[t]he tortfeasor need not foresee the precise injury ; it is enough that the type of injury be within an objective ' realm of foreseeabili ty.' " Bendar , 247 N.J. Super. at 229, 588 A.2d at 1269. Then, with respect to the plaintiff's consideration of factors outside of the cr ash in deciding to terminate her preg nancy, the court held: "[Defendants] point out that [the plaintiff] had even said that some of her

reasons for undergoing the abortion were the identical reasons that she expressed for having the original tubal liga tion, namely the economics of raising another child, having to undergo the uterine stitch, and having had three difficult pregnancies. If this were all that plaintiff had stated, the automobile defendants might have a valid arg ument. But plaintiff specifically te stified that a significant consideration in her decision was the danger that the [X]-rays had deformed the fetus. I n fact, she stated that the [X]-rays were ' one of the major things' which influence d her decision. While cau sation ce

rtainly remaine d a fact

issue, the jury could pro

perly have resolved it against the automobile defenda nts." (Emphasis added). Bendar , 247 N.J. Super. at 230, 588 A.2d at 1269-70. Surrounding the defendants' claim that they could not have foreseen that the plaintiff would have undergone X-ray

s while unaware she was preg nant, the court noted with approval that the trial1-05-2126

-32-

judge in structed

the jury " 'tha t it is fore seeable

... that a person w ho is involv ed in an a

utomobile accident will require medical treatment, including [X]-ray s'" and that if the jury

decided that the exposure to X-rays " 'was a proximate cause of the plaintiff' s decision to have her pregnancy terminated, then ... the termination ... and associated injuries are for eseeable consequences of the negligence of the [ automobi le] defendan ts." Bendar , 247 N.J. Super. at 231, 588 A.2d at 1270. In Deutsch

v. Shein , an internist ordered multiple diagnostic X-ray s performed on the plaintiff when she reported to him with various sy mptoms including nausea and weakness. Prior to order ing the X -rays, the doctor faile d to test the plaintiff for pre gnancy, h

owever , and she

was, in fact, pregnant at the

time. The

plaintiff 's obste trician/ gy necologist deter

mined the re was a serious risk of damage to the fetus and, in the eve nt the plaintiff decided to have an abortion, he recommended that it be performed within a week. The plaintiff's pediatrician, similarly , did not counsel her as to whether she should have an abor tion but did inform her that the procedure was "medic ally

indicate d." The

plaintiff went on to

terminat e her pr egnancy and to sue

her inte rnist for malpractice. At trial, the internist presented expert testimony that the amount of radiation exposure did not, in fact, warrant a therapeutic abortion. The jury hear ing the case determined that the d octor br eached his duty of care in failing to administ

er a pre gnancy te st, but also concluded that the breach was not the proximate cause of the plaintiff's injuries. The Deutsch court disagreed, however, a nd remanded for a new trial. Deutsch , 597 S.W.2d at 142-43. The court held: "[W]hether the medical opinions Mrs. Deutsch received represe nted correct medical advice is of no import. Dr. Shein failed to adhe re to the1-05-2126

-33- applica ble stand ard of c are and

his negl igence

was a sub stantial f

actor in causing Mrs. Deutsch to be irradiated while pr eganant. As a result, she sought medical advice about her condition. Neither doc tor consulted advised her to have an abortion performed, but both we re of the opinion that the extent of radiation she received would have dire conse quences upon the developing fetus and upon Mrs. Deutsch' s emotional health. Having put Mrs. De

utsch in a position fr

om which it

was rea sonable t

o seek the medical services of other doctors, Dr . Shein is responsible for any injury to her re sulting f

rom her e xposure to t

he risk in volved in t

hese medical serv ices." Deutsch , 597 S.W.2d at 145. Finally, the Court of Appe als of New York declined to find a plaintiff's a bortion to be a superceding cause over the defendant's neglig ence in Ly nch v. Ba y Rid ge Obst etrical & Gy necological Asso ciates, P.C. , 72 N.Y.2d 632, 532 N.E.2d 1239 (1988). According to her complaint, the Ly

nchplaintiff reported to her gy necologist after she had not menstruated for three months, but he

r home pr egnancy tests also came ba ck neg ative. Af

ter exclus ively performing a visual examination, her doctor informed the plaintiff that she was not pregnant and prescribed her the drug Prover a. When she filled the prescription, the label on the packaging and the phar macist inf ormed the plaintiff , for the first time , that ing estion of Provera in early pr eg na nc y cr ea te d a se ri ou s r is k o f b ir th de fe ct s. Th e p la in ti ff to ok th e m ed ic at io n a nyw ay, however , since he

r doctor had told he

r that she was not pr

egnan t. When she

continue d to miss her period, the plaintiff reported to another g ynecologist. The second doctor performed1-05-2126

-34-

laboratory te sts that revealed that the plaintiff was actually pregnant. This doctor also counseled the plaintiff on the risks posed by he r use of Provera. Based on her f ear that her fetus had been harmed, the plaintiff and her husband decided to terminate the pregnancy . The plaintiff claimed physical and em otio nal in jurie s as a re sult of the abort ion an d from havin g to dec ide to under go the procedure. The trial court, however , dismissed the complaint for failure to state a claim. Ly nch , 72 N.Y.2d at 634-35, 532 N.E.2d at 1240. In re versing the dismissal and rejecting the defendant's claim that the plaintiff's per sonal decision to have an abortion constituted a superceding cause, the Ly nchcourt explained: "There is, we conclude, a fa ctual question presented here: whether, under the circumstances, it could reasonably be expected that plaintiff, upon discovering that she had taken the drug in the mistaken belief that she was not pregnant, would elect to undergo a n abortion. *** [T]he general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superse ding ca

use absol ving the defenda nt from lia

bility [citation]. T

hus,

a reasonable at

tempt to avoid the da

nger c reated by a defenda nt's conductan action that should certainly be considered a 'normal conseque nce' of that conduct-cannot amount to a superceding a ct which breaks the chain of causation. [Citations.] *** [I]t is apparent that plaintiff's 'choice' to have an abortion cannot be said to be, as a matter of law, a superseding cause. As the complaint alleges, the physician's negligent diag nosis and treatment1-05-2126

2 A private investigator for Williams took the recorded statement of Melissa B razeau, a waitress at Jerry' s Grill, located on the southeast corner of Western and Montrose. B razeau -35- were th e preci pitat ing cau ses of all t hat fo llow ed; bu t for t he gynecolo gist's conduct, plaintiff

would not have bee

n in the pos ition of ha

ving to c hoose betwee n two obje ctionabl e altern atives: un

dergo an abort ion or risk having a baby

with serious birth defects. That plaintiff made the very choice forced upon her by defendants' neglig ence cannot insulate them from legal respo nsibili ty for such conduct. " Ly nch , 72 N.Y.2d at 636-37, 532 N.E.2d at 1241-42. See also In re Alice D. , 113 Misc. 2d 940, 949 , 450 N.Y. S.2d 350, 35 6 (1982) ( "Under the fac ts in this cas e [where

a man inf

ormed a woman that

he was ste

rile whe n, in fact, he was

not], it would be incredible and intolerable to state that a woman who bec omes pregnant against her wishes an d then aborts, has n

ot been ha

rmed. *** The fact that her choice o f an abor

tion is purely a pe

rsonal one [citations], does not alter the fact that she has suffered harm r esulting from the conception, pregnancy , and subsequent abortion"). We fail to s ee why

the rationale of t

hese ca ses would

not similar

ly a pply under the facts of the case at bar. At least some evidence before us suggests that Williams' decision to abort was made based only on me dical considerations, most specifically the effects on her own long-ter m health if she did not

terminat e the pre gnancy a

nd under go immed

iate pelv ic surg ery . There

is further evidence that these considera tions only came about as a result of the alleged neglig ence of Manchester in striking the car in which Williams rode. 2 Thus, Williams' decision to abort1-05-2126

witnessed the crash on October 15, 2002. I n her opinion, Manchester bore responsibility since he "did not yield to oncoming traffic and turned in front of this car."

-36- appear s "clos ely and rea sonab ly associ ated w ith t he imm ediat e cons equen ces of t he defe ndant 's act, and *** a normal part of its aftermath." Prosser & Keeton on Torts §44, at 307. Moreover, while this would not preclude a jury from considering the matter as a question of fa ct , we cannot agree that, as a matter of la w, it would be unforeseeable that a preg nant woman, injured through a person's negligenc e would agree to endure the me dical consequences to herself, or the fe tus for that matter, regardless of their seve rity, simply

for the sake of maintaining the preg nancy. See Coleman v. Windy

City Balloon Port, L td ., 160 Ill. App. 3d 408, 415 (1987) (“ ' fo re se ea bi li ty' is a factor in both th e court' s duty dete rmina tion -whic h is a q uesti on of l aw [ci tati ons] -and t he jur y's proximate cause determination, which ordinarily is a question of fact [citations]") This might be the reasonably

foreseeable result where a bortion is legally prohibited, but not wher e such intervention is lawful and available. See Farley v. Sartin , 195 W. Va. 671, 684, 466 S.E.2d 522, 535 (1995) ("By

definition, if a woman has a constitutional right to decide whether to ca rry an unborn child to ter

m or abor t it, then the act of

aborting is not torti ous"); City of Missoula v. Asbury , 265 Mont. 14, 19, 873 P.2d 936, 938-39 (1994) ("Appellants' individual religious and moral beliefs are neither included in, nor releva nt to, [the] statutory defenses [raised]"). The circuit court itself recognized the forese eability of the termination in this case w hen, in refusing to dismiss Williams' negligent infliction of emotional distress count, it stated "a jury could find that it was reasonably

foreseeable to expect that a preg nant woman who is injured in a motor1-05-2126

-37-

vehicle accident would be forced to put her f etus at risk in order to have her own injuries treated." Thus, we c annot fin

d that Willia

ms' dec ision to ab ort Baby D oe under these circumst ances c reated can be d eemed " highly

extraord inary " (Resta

tement (Se cond) of

Torts §435(2), at 449), s o that her decision would be a

superce ding ca

use of B aby

Doe's d eath in relation to Manchester's original a lleged negligenc e. See Restatement (Second) of Torts §442A, Reporter 's Note s, Comment b , at 469 ("Where the neglige nce of the actor has create d the risk of harm to another because of the likelihood of such intervention, the a ctor is not relieved of responsibility merely

because the risk which he has crea ted has in fact been fulfilled"). Manches ter would

contend, however , that our result is c ontrary

to the hold

ing of the case of Light v. Proctor Community Hospital , 182 Ill. App. 3d 563 (1989). But, we disag ree. In Light , the plaintiff underwent a thy roid scan, subsequently f

ound out that she was pregnant, and, on the advice of he r radiologist, terminated her preg nancy. The

circuit court granted the hospital's motion to dismiss the plaintiff's wrongful de ath complaint and the plaintiff appealed. Light , 182 Ill. App. 3d at 564-65. The Light court observed that the facts at bar ca lled section 2.2 of the Wrongful Death Act into play , which stated:

"There shall be no cause of ac tion against a phy sician or a medical institution for the wrongful death of a fetus caused by an abortion where the abor tion was pe

rmitted by

law and the requis ite conse nt was law fully given. Provided, however, that a cause of action is not prohibited where the fetu s is live-b orn, but su bsequen tly d ies." 74 0 ILCS 180/2.2 (

West1-05-2126

3 As a result we are not called upon to consider the va lidity of the Light

court 's -38- 2002). The cou rt wen t on t o conc lude t hat th e plai n langu age of se ction 2.2 pr eclud ed the plain tiff's action be cause:

"While the plaintiff may ha ve received substandard medical ca re at the time the thyroid scan wa s administered, the existence of her fetus was terminated as the result of her subsequent voluntarily consensual legal abortion. The consequence of the scanning procedure may

have been a potential increase in risk to the well-being of the fe tus. The result of the abortion p rocedure was th e actual termi nation of t he plainti ff's pregnancy." Light , 182 Ill. App. 3d at 566. We note that in its abbreviated analy sis, under two pages, the Light court exc lusively provided authorities surrounding proper statutory construction. Light , 182 Ill. App. 3d at 565- 66. The court never considered the possibility of concurrent causes or fore seeable intervening causes, nor cited to any

authorities addressing proximate cause gene rally. The c ourt concluded its analysis by

stating, "In summary

, we believe the subject provision of the Wrongful Death Ac t to be c ertai n and u nambi guous a nd th is cou rt wou ld be u nwarra nted i n broa denin g the st atute 's reach to embrace t he set of facts at bar." Light , 182 Ill. App. 3d at 566. Thus, it appears clea r that the specific strictures of section 2.2, not gener al tort principles, determined the result of the case. Of course, since this case does not involve a claim against a doctor or medical institution, section 2.2 has no bearing on the case a t bar. 31-05-2126

interpre tation of t hat sect ion of the Act. -39- Manchester, however, still contends that the Georgia case of Roseberry v. B rooks , 218 Ga. App. 202, 461 S.E.2d 262 (1995), should persuade us to uphold the circuit court's g rant of summary judgme

nt to him. We, however, find the facts of Roseberry to be too far removed from those of the instant case to be of any value in reaching our determination. In t ha t c as e, Mr s. Ro se be rr y reporte d for med ical ca re and w as ultimat

ely diagno sed with terminal liver cancer by

the defendant gastroenterologist. Prior to commencing diagnostic testing and trea tment, whi ch appa

rently included X-ray s, the ga stroente

rologis t did not pe

rform a pregnancy

test on her. Mrs. Roseberry 's condition worsened to the point where her last hope of survival was through undergoing an experimental chemotherapy regimen. To qualify

for the study , howeve

r, she wo uld requi re drai nage o f her live

r throug h a stent to

reduce her bilir ubin levels. During an ultrasound following placeme nt of the stent, doctors discovered that she was roughly 21 weeks pregnant. The ga stroenterologist, allegedly without consulting an obstetrician or perinatologi st, informed Mrs. Ro seberr y that her f

etus was " doomed" and coun seled he r to have an abortion, which she did. She died shortly thereafter of an infection that formed a t the stent site. Mrs. Roseberry' s estate presented evidence, howeve r, that the pregnancy

could have continued even after her death. The estate's and the doctor's experts ag reed that the gastro enterol ogist' s failing to initially

perfor m a preg nancy test and f ailing to consult wi

th obstetricians or perinatologists prior to recommending a n abortion would have been deviations from the applicable standard of care . A jury awa rded damages for the aborte d child's wrongful death. Roseberry , 218 Ga. App. at 202-05, 461 S.E.2d at 263-265. However, the Roseberry1-05-2126

-40-

court reversed. The Roseberry court noted undisputed trial evidence that Mrs. Roseberry elected to have the abortion because she could not qualify for the experimental chemotherapy study while pre gnant. The cour t held tha t, since h er deci sion to abort was, th us, wholly

unrelat ed to any negligence by

her doctors, her elective abortion was a supe rceding cause of injury

to the child. Roseberry , 218 Ga. App. at 207, 461 S.E.2d at 267 . In this case, unlike in Roseberry , as previously noted, ther e is evidence that Williams was uninfluenced in her decision to terminate the preg nancy by any fac tor other than medical considerations to which she would not have been subject but for Manche ster's allegedly negligent driving. Manchester would attempt to diminish the import of the factual dissimilarity by assertin g that Roseberry

stated a categorical rule a gainst recovery

for a fetus' wrongf

ul death after an abortion; however, that view has not even been maintaine d by Georg ia's courts. See Brey

ne v. Potter , 258 Ga. App. 728, 730-31, 574 S.E.2d 916, 919 (2002) (explaining that in Roseberry the court "held that the termination performed for the pur pose of obtaining experimental treatment was an in terveni ng act t hat super seded an y me dical ne glige

nce by the defe ndant doctor that a

lso

caus ed th e mother toterminate the p reg nancy. [Citat

ion.] Roseberry

does not stand for the proposition that a pa

tient's decision to termina

te a pre gnancy br

eaks the chain of proximate c ause following a doctor's erroneous dia gnosis on which the patient relied in making that decision") ; see also Shirley , 154 Ga. App. at 205, 267 S.E.2d at 811 ("the fact that the ' homicide' in question

occurr ed at the time of the

therape utic abor tion does n

ot precl ude appe llant from maintain ing this action if the trior of fact concludes that said abortion was ne cessitated because of injuries sustained as a result of the negligenc e of appellees"). Hence, we are not dissuaded from our pr ior1-05-2126

-41-

an al ysi s b y Roseberry

. What we perceive in much of Manchester' s argument is not so much a claim that Williams' claim wa s unfore seeable or not a normal con sequenc e of his ne glige nce, so mu

ch as a critique of the ultimate necessity and reasonableness of Williams' actions under the circumstances. Thus, Manchester repea tedly emphasizes that there we re treatment options available that would have allowed Williams to carry Baby D oe to term. It, therefore , appears that Manchester is attempting to invoke the rule of avoidable c onsequences. See Clarkson v. Wright , 108 Ill. 2d 129, 132 (1985), quoting Prosser, Torts §65, at 422-23 ( 4th ed. 1971) (" 'Closely

allied to the doctrine of contributory negligence is the rule of ‘ avoidable consequences,’ which denies recovery for any da

mages which could have been avoide d by reasona ble conduct on the part of the plaintiff. Both rest upon the same fundamental policy of making recovery

depend upon the plaintiff's proper care for

the protection of his own interests, and both require of him only the standard of the reasonable man under the c ircumstances' "); 1 D. Dobbs, Torts §196, at 489 (2001) ("under the avoidable conseque nces rule for minimizing damages, the plaintiff is reg arded as the sole proximate cause of damages suffe red because she failed to mitigate da mages once injury occurr

ed. As to those damages, the plaintiff cannot rec over at all"). We, however, disagree that this rule would have any application in the instant case. See Corlett v. Caserta , 204 Ill. App. 3d 403, 412 (1990) ("pre cedent does not support [Dr.] Caserta's proposed per se rule that the estate of a deceased patient who r efused, on religious grounds, a re asonable life-saving medical treatment should be barred, as a matter of law, from all wrongful death recove ry from the physician whose ne gligence necessitated the lifesaving medical procedure. Whether ba sed1-05-2126

-42-

upon principles relating to mitigation of damage s, comparative fault, or assumption of the risk, we do not b elieve that a patie nt's re fusal to a

ccept a reasona ble medic al treat

ment, suggested

in an effort to alle

viate the consequences of

the phy sician' s neglig ence, sh

ould serv e to compl etely defeat the patient's recover y for those injuries proximately caused by the

physician' s negligent acts"). To begi

n, we wou

ld questio n whethe

r Manche ster cou

ld even c halleng e Williams' medical decision under the undisputed facts in this case. This court clarif ied in Hall v. Dumitru , 250 I ll. App. 3d

759, 765 ( 1993), tha

t: "An ex cepti on to [the ] gener al rul e [req uirin g a pati ent to under go reasonable mitigating medical trea tment] exists with respect to surgical procedures as well as nonsurgica l procedures which present a risk of enhanc ed or add

itional inj ury . *** [I ]f the prop osed tre atment co uld result in an aggravation of the e xisting condition or the development of an additiona l condition

of ill hea lth, or if t he prospe ct for improved he alth is slight, then there should be no duty to undergo the tre atment. If the risk is clearly r emote, the exception should not apply. But the risk ne ed not be significant or even probable in order to trigger the exception. Once the grounds for the exception are e stablished, it should be unnecessary

for the patient to articulate the particular rea son for choosing to forego the treatment since this is an objectivetest not a subjective one. It is not the place of the court or the jury to evaluate a

patient's reasons for1-05-2126

-43- declinin g surg ery or trea tment, if t he risks a re rec ognized. " (Empha sis in original). Thus, the Hallcourt he ld that its p laintiff could not b e found to

have unr easonab ly f

ailed to mitigate her damages, resulting from complications surrounding pregnanc ies occurring after a botched tubal ligation, when she refused to undergo a second tubal ligation procedure prior to the pregnancies. Hall , 250 Ill. App. 3d at 766 ("I t is apparent from the record that a tubal liga tion surgery involves risks to a woman's life or member. [Citation.] Therefore, the plaintiff was under no duty to underg o the surgery to mitigate her damages, and the e vidence on this issue was improperly admitted, and the a rgument was *** improperly allowed"). The holding of Hallwould app ear to pr eclude a ny f inding that Williams was under a duty to carry Baby D oe to term or to otherwise delay hip surgery

under the circumstances. Undisputed facts presented in discovery suggested that Williams would have been at significa nt risk of additional injuries if she delaye d repair of her pelvic fracture s. Williams testified in her deposition that her doctors told her that if she continued with her pregna ncy the condition of her hip could deteriorate to the point where she might not walk proper ly ag ain, even after corrective surgery . Dr. Keller testified in his deposition that leaving Williams' pelvic fracture untreated "carried short-term and long -term risks," including "embolic phenomenon, thrombosis and embolism, b lood clots ," as we ll as a pote ntially worse or thopedic outcome f

rom the de layed hip repair. Dr. Keller further testified that the hospital' s perinatal ethics committee approval of the abortion would only

have oc curred

under its rules in the event o f a "sig nifican t risk" to Williams or Baby Doe witho

ut the per formanc e of the procedur e. Manchester do es not app ear to di rectly1-05-2126

-44-

dispute that a delay in per forming the surgery

would have increased the risk to Williams. Rather, he mere ly p oints out tha

t Dr. Kel ler is not a

n orthope dist, thoug

h his opinions were

at least i n part based on discussions with Williams' orthopedist; that there was no specific quantification of the increased risk, though, according to Dr. Keller, the hospital would only pe rform an abortion when there was a "signific ant risk"; and that Williams' orthopedist could not guarantee a good surgical outcome even if the hip repair was performed immediately

. Since it is undisputed that delaying surg ery would have definitively increa sed the risk of lasting, disabling injury

to Williams, it is not for Manchester or this court to second-guess her medical decision to terminate her pregna ncy so that she could unde rgo surgery

immediately. See Hall , 250 Ill. App. 3d at 765 ("if the propose d treatment could result in an aggra vation of the existing condition or the development of an additional condition of ill health, or if the prospect for improved health is slight, then there should be no duty to undergo the tre atment. * * * It i s not the place of the court or the jury to evaluate a patient's reasons for de clining surgery or treatment, if the risks are recognized" ). Moreover, even if the Hall exception did not app ly, we do not b elieve that Williams' decision to termina

te her pr egnancy in order to facili tate imme diate hip

surger y c ould be fo

und to be so unreasonable that liability would be precluded as a matter of law . See Corlett , 204 Ill. App. 3d at 414 (holding that the reasonableness of a plaintiff- patient's medical decisions should be determined in light of "the gravity of plaintiff's original injury , the intrusiveness of the proposed medical procedure and its attendant risk of complications, the fe asibility of alternative medica l procedures, the expense of the proposed medical tre atment, the likelihood of increased recovery1-05-2126

-45-

if the proposed medical procedure had bee n accepted by

the plaintiff, and other relevant circumstances"). To begi n, there is some evidence t

hat phy sicians c ounseled

Williams to terminate her pregnancy . This is at least one possible inference from Williams' deposition testimony that her doctors " convinced [her]" that she should have an abortion. I t would be difficult to label Williams' decision as unreasonable if, in fact, she was only following medical advice. Manchester would contend, however , that this testimony should not be credited in light of Dr. Ke ller's

testimony

that the hospital' s doctors ' couns eling w as to be nonjudgme ntal. Bu t, credibi lity

determinations ar

e inappr opriate in summary

judgmen t procee dings. T

he dispar ity between Williams' and Keller's descriptions of the na ture of the advice given by the hospital staff, at the very

least, would present a dispute of material fact to be re solved by the jury

. Further, a jury

could well find that Williams made a reasonable medical decision under the circumstances since her multiple hip fractures fr om the auto collision presented a serious condition (see Corlett , 204 Ill. App. 3d at 414), that required a near-immediate treatment decision (see Wong v. Richards , 10 Ill. App. 3d 514, 516 (1973) ("c onduct must be judged not in light of what later events revealed might or c ould have been a better or a safe r course of conduct, but against the standard of how a rea sonable person would have reacted under the circumstances of the same sudden a larm") ; Jensen v. East St. Louis Ry. Co. , 202 Ill. App. 583, 588 (1916) ("The fact that after being put in sudden dang er by appe llant's negligence a ppellee was hurt by

her own act, in attempting to escape from injury, does not necessarily charge her with contributory neglig ence, b

ut leave s it a ques tion for th e jury to decide whether she acte d as a re asonably prudent person might have done under the circ umstances")).1-05-2126

-46-

Likewise, even if Williams could not justify the abortion as a response to concerns about her own, personal safety , a strong argument could be made that summary judgme

nt was inappropriate ba sed on the extent to wh

ich Baby D oe's ir

radiation may

have pla ye d a part i

n Williams' decision to abort. Manchester makes much of Dr. Keller 's lack of expertise and specific testimony with respe ct to evaluating the exact amount of increased risk to B aby Doe based on his/her past irradiation and future radiation, in the event Williams had electe d to delay surger y a nd mainta in her pr egnancy . Howeve

r, the obj ective li

kelihood o f injury

to Baby Doe is not dispositive with respect to the reasonableness of Williams' action. What is relevant to the reasonableness of her conduct is her re sponse to what doctors communicated to her rega rding the effect of radiation on Baby Doe. The only e

vidence in the record as to what doctors told her comes from Williams herself who stated that doctors Kirby , Ebigler and George warned her that her x-rays could c ause "disabilities in the child and mental problems." See Deutsch , 597 S.W.2d at 145 ("whether the medical opinions Mrs. Deutsch re ceived represented corre ct medical advice is of no import. Dr. Sh ein['s] ** * neglig ence wa s a substa ntial fac tor in ca using Mrs. Deutsc

h to be irradiated while pregnant. As a result, she sought medical advice about her condition. Neither doctor consulted advised her to have an abortion perf ormed, but both were of the opinion that the extent of radiation she received would have dire conse quences upon the developing fetus and upon Mrs. Deutsch's emotional health. Having put Mrs. Deutsch in a position from which it was

reasona ble to see k the medi cal ser

vices of other doc tors, Dr. Shein is re sponsible for any injury to her resulting from her exposure to the risk involved in these medical ser vices"). Moreover, we note that we find no order closing discovery in the record and that neither party asserts that1-05-2126

-47-

discover y ha s closed a

nd, final ly, that Dr. K

eller te stified that a phy

sicist and geneti cist could provi de a qu antif

icati on of r isk fr om irr adiat ion. Hence, were th ere mer it to Manch ester 's contention that such quantification of risk to the fetus was necessary to support the

re as on ab le ne ss of

Wi ll ia ms ' a ct io n, in th e a bs en ce of th e c on ce rn fo r h er ow n, pe rs on al sa fe ty, there is no reason to think that she could never meet this burden at trial, so that summary judgment should have been granted. The dissent takes issue with our result, however, contending that " [t]he fetus here was terminated as a result of Williams' legal voluntary consent to abort. There is no evidence in the

rec ord th at t he f

etu s wa s i nj ure d as a di rec t re sul t o f th e ca r ac cid ent ." S li p op . at 61. In requiring that the fetus must sustain a direct injury , the dissent would appear to argue that the Wrongful Death Act does not contemplate the extension of proximate cause to an initial tortfeasor where there is also an interve ning act involved. In kee ping with this perspective, the dissent su gges ts that sinc e there

was no dir

ect injur y to Baby Doe by Manches ter in the

accide nt, Baby D oe had no direct cause of action ag ainst him and, therefore, that Williams does not either, since he r right s are de

rivative of Baby Doe's r ights. With

all due r espect, this appr

oach is unsustainable. The dissent does not purport to challenge the principle that fore seeable intervening causes will not preclude recovery for injuries sustained as a result of the original tortfea sor's negligence

. Nor can the dissent challenge that under certain circumstances voluntary abortions are forese eable a s a resul

t of the c onduct of

the under

lyin g tortf easor. T hese cir cumstanc es would include a mother's decision to abort to avoid the risk of exacerba ted physical injury

to herself or1-05-2126

-48-

the child during the foreseeable c ourse of treatment by the mother for the direct injuries which she alone sustained in the prior accident. See Shirley , 154 Ga. App. at 204, 267 S.E.2d at 811. Yet, the dissent still insists that Baby Doe' s death exclusively came a bout "as a result of Williams' legal voluntary consent to abort." Slip op. at 61. Necessarily , then, the dissent ignores the undisp

uted fac ts as they appear in the re cord to su

pport tha t Manche ster bro ke her pe lvis, requiring that she choose between ter minating the pregnancy

and possible permanent personal injury, specifica

lly, never wa

lking properly

again, if she delay

ed surgery

in order to maintain the pregnancy . As pointe d out, Willia ms testifie d in her de

position tha

t her doctors told he

r that if she continued with her pregnancy that the condition of her hip could deteriorate to the point where she might not walk properly again, even after cor

rective surgery . And we, again, observe that Dr. Keller testified in his deposition that leaving Williams' pelvic fracture untreated "carried short-te rm and lon

g-ter m risks," including

"embolic phenomen

on, thromb osis and e

mbolism, blood clots," as well as a potentially worse orthopedic outcome from the delay ed hip repair. See Shirley , 154 Ga. App. at 205, 267 S.E.2d at 811 ("the fact that the ' homicide' in question occurred at the time

of the the

rapeuti c aborti on does no t preclu de appe llant from maintain ing this a ction if the trior [ sic ] of fact concludes that said abortion was necessitated bec ause of injuries sustained as a result of the negligenc e of appellees"); accor d Deutsch , 597 S.W.2d at 145. Moreover, as previously

noted, there is evidence in the record to allow a jury to conclude that it would have been foreseeable or norma l for Williams to abort out of concern for the future health of Baby Doe, sinc e Baby

Doe had b een irr

adiated in the cou

rse of tr eating Williams' injuries, and would be further irradiated, should Williams have elected to maintain the pre gnancy1-05-2126

-49-

and delay sur

gery . The dissent repeats Manchester's a rgument that there is insufficient expert testimony to conclusively establish that Baby D oe had actually suffered injury

at the point of Williams' decision to end the pregnancy . However, what is relevant toward establishing the reasonable foreseeability

of Williams' conduct is what her doctors communicated to her regarding the eff

ect of radiation on Baby

Doe. According to Williams' undisputed testimony , her doctors, Kirby, Ebigler and George, warne d her that her X-ray s could cause "disabilities in the child and mental problems." She further testified that her doctors c onvinced her to abort on account, at least in part, of Baby Doe's irradiation. See Deutsch , 597 S.W.2d at 145 ("whether the medical opinions Mrs. Deutsch received repre sented correct medical advice is of no import. Dr. Shein['s] *** negligence was a substantial fa ctor in causing Mrs. Deutsch to be irradiated while pregnant. As a result, she sought medic al advice about her condition. Neither [subsequent] doctor consulted advised her to have an abortion performed, but both wer e of the opinion that the extent of radiation she received would have dire conseque nces upon the developing fetus and upon Mrs. Deutsch's e motional health. Having put Mrs. Deutsch in a position fr

om which it

was rea sonable t

o seek the medical s ervice s of other doctors, Dr. Shein

is responsible for any

injury to her resulting

from her exposure to the risk involved in these medical services"). Thus, there can be little question that under well-established proximate cause ana lysis the question o f liability

of the und

erly ing tortfeasor

for an e nsuing a bortion of fetus, a t the ver y le ast, would remain an issue for a jury to determine and would not be susceptible to summary determination as a matter of law. See Coleman , 160 I ll. App. 3d at 415 (“ 'fore seeabil ity'

is a1-05-2126

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factor in bo th th e court 's dut y determi natio n-whi ch is a quest ion o f law [ citat ions ]-and the ju ry's proximate cause determination, which ordinarily is a question of fact [citations]"). To avoid that result, the dissent

appare ntly attempts, by j udicial f

iat, to disc laim conv entional proximate c ause analysis where

there is an intervening human age ncy in case s involving the wrongful death of a fetus. The dissent suggests that the Wrongful De ath Act will not allow recovery for the death of child incurred as a result of an elective a bortion even though, apparently , it would permit the mother to recover for the personal injury she would sustain as a result of being forced to make that election. It reac

hes this conclusion by espousing tha t the Wrongful Death Act would require a direct injury to the f

etus by the defe

ndant and would not permit recovery for an injury r

esulting from an intervening act, however foreseeable or natural the interve ntion would be under the circumst ances. The di ssent attem pts t o exp lain i ts no vel "di rect i njury" th eory by stati ng: "[T]he proximate cause analysis of the majority relies on a theor y that the 'death' of the fetus is the ' injury' that supports the w rongful death cause of action. The analy sis *** writes out of the Wrongful Death Act the requirement that there must have been an ac tionable injury to the fetus with recoverable damage s that could have been maintained had death not intervened." Slip op. at 61-62. The contention of a direct injury requirement is defeated, however, by the very lang

uage the dissent accedes to, specifically , that the beneficiary recovers where the dece dent, had he survived, would have recovered. This lang uage would make the mother's re covery subje ct to the1-05-2126

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same proximate cause analy sis that would have applied to the decedent if he had survived and brough t the acti on in his ow

n person. But, eve

n more poi

ntedly , this cont

ention is e

ntirely inconsistent with the dissent's suggestion that if the child had died en ventr e sa mere , as a re sult of radia tion incur red in the course o f treatment for Wil liams' own injurie s, wrong ful deat h recovery would be permitted. Under that scenario, the injury to the child would not have been directly ca

used by the tortfea sor, but indirectly throug h the mother's consent to treatment and the doctors' administration of radiation. More overriding ly, recove ry under the

Wrongful Death Act has repeatedly

been permitted in cases involving intervening c auses, even where the intervening cause has been the decedent him/herse lf (see Winger v. Franciscan Medical Center, 299 Ill. App. 3d 364 , 374 ( 1998) , quot ing Cowan v. Doering , 215 N.J. Super. 484, 494-95, 522 A.2d 444, 449- 50 (1987)(stating , in repud iating a line of e arlier c ases hold ing that a deced ent's de cision to suicide necessa

rily constitute d a super

ceding interve ning ca use unles s the dec edent wa s wholly bereft of reason: " 'Wher

e it is reasonably f

oreseeable that a patient by reason of his mental or emotiona l illness ma

y a ttempt to in

jure himse lf, those

in charg e of his c are owe a duty to safeg uard him f

rom his sel f-dama

ging p otential. This duty contempl ates the

reasona bly foreseeable occurrenc e of self-inflicted injury regardless of whether it is the product of the patient's volitional or negligent act' "); see also Hooper v. County of Cook , 366 Ill. App. 3d 1 (2006) (reversing and rema nding for a new trial where the c ourt did not issue a special interrogatory

to the jury

to answe r whethe r the dec edent' s commission of suici de was f oresee able to his medic al provid

ers and t he evide nce pre viously adduce d did not es tablish its forese eability as a matter of law)), or a criminal ac tor (see Vaughn v. Granite City Steel Division of National1-05-2126

-52-

Steel Corp. , 217 Ill . App. 3d 46 ( 1991) (hold ing an e mplo yer liabl e where the em ployer's negligently

provided security, in its parking lot, facilitated the fatal shooting of an employ ee); Duncavage v. Allen , 147 Ill. App. 3d 88 (1986) (holding a la ndlord liable for his tenant's death, under the Act, where it was foresee able that a criminal would invade an apartment and murder the tenant because of the decrepit state the landlord allowed the building to fall into and where there had been previous incidents of crime on the site))

. More generally, the dissent's interpolation of new proximate causation standards into the Act must be

rejecte d becau se, simply put, the st

andards surround ing proximate cau sation in ordinary ne gligence cases ha ve alway s applied in wrongful death cases, including the standards surrounding multiple and intervening causes. F or example, in Vaughn v. Granite City Steel Division of National Steel Corp. , 217 Ill. App. 3d 46 (1991), a wrong ful death case involving an alleged neglige

nt failure to provide security , this court stated: "The correct standard to be a pplied in a wrongful death case such as this is succinctly stated in the case of Hare v. Foster G. McGaw Hospital , (1989) 192 Ill. App. 3d 1031, 549 N.E.2d 778. I n Hare , Justice Jiganti characte

rized the c ausation

question a s follows: 'This cause is a wrongful dea th action based upon the all ege d m edi cal mal pra cti ce o f th e de fen dan t, Dr. Labr ado r. In order to recover for wrong ful death, the Wrongful Death Act requires the plaintiff to prove that the alleged ne gligence caused the death of the decedent. [Citation.] The Illinois Supreme Court1-05-2126

-53- has stated that to prove causation in a medical malpractice a ction, the plaintiff must establish that it is more probably true than not tr ue th at th e n eg li ge nc e w as a p ro xi ma te ca us e o f t he in ju ry. [Citation.] To

prove pr oximate ca

use, the p laintiff

must estab lish that the defendant's neglig ence was a cause in fact of the death. [Citation.] If the death would have occurred e ven in the absence of negligence, the neg

ligence was not a cause in fac t of the death. The element of cause in fact need not be proved to a certainty

. Rather the eviden

ce is suf ficient i f it affords the ju

ry a reasonable basis to conclude that the negligence was "probably " or "more likely than not" a c ause of the death. ***' While Hare involved medical malpractice, the same causation analysis applies to the instant case because both cases were filed under the Act ." (Emphasis added). Vaughn , 217 Ill. App. 3d at 54-55. Further, in Heitz v. Hogan , 134 Ill. App. 3d 352, 362 (1985), this court held that the long form of Illinois Pattern Jury Instructions, Civil, No. 15.01 (2d ed. 1971) (hereinaf ter IPI Civil 2d) ("When I use the expression ' proximate cause' I mea

n [that] [a] [any] cause which, in natural or probable sequenc e, produ

ced the i njury complained of. [I

t need not be the onl

y c ause, nor the last or nearest cause. I

t is sufficient if it concurs with some other cause acting a t the same time, which in c ombination

with it, ca

uses the i njury ") shoul d be giv en to jurie s in wrong ful deat h cases where two or more persons may have caused the injury . Finally, in Law v. Centra l Illin ois1-05-2126

-54-

Public Ser

vice Co ., 86 Ill. App. 3d 701, 707 (1980), we specific ally approved, in a wrongful death case, of the provision of a jury instruction that addressed intervening causes and ide ntified a pattern instruction on the subject available to the circuit court, specif ically I PI Civil 2d No. 12.05 ("If y

ou decide that a [the] defendant[s] was [were] negligent and that his [their] neglig ence wa s a proximat e cause of injury to the pla intiff, it i s not a def

ense tha t something

else may also have be en a cause of the injury "). Since the position of

the disse nt finds no

justifica tion under

applica ble proxima

te cause analysis, we c an only surmise that, at its core, the dissent finds the inexorable result, that the mother c annot be p

reclude d from re covery

under the Wrongfu l Death A ct for a

reasona bly forese eable vo luntary

abortion induced b

y tortious acts of anot

her, to be societa lly u nacceptable and coun terintuit ive. Conse quently, the disse nt seeks t o tie its re jection to prevail ing publi c policy considera

tions, which the dissent quite openly seeks to invoke. This is, in all likelihood, geare d to the not

ion that, u

nlike more

conventi onal inte

rvening cause c ases, he

re, the mother is both the intervenor and the plaintiff seeking rec overy. Howe ver, there is no analy

tical basis upon which to make Williams' dual status as the foreseeable or normal inter venor and as the beneficiary

who recovers under the Act subject to sanction, nor to make her status fit into any category that could be developed into an affirmative defense . The mother in this case intervened because of the fractured pe lvis she sustained as a result of the negligenc e of the underly ing tortfeasor, Manchester. That negligence put her to a form of "Sophie' s choice." See W. Styr on, Sophie's Choice. Given the risks and alternatives communicated to her by her phy

sicians, and the legality

and availability of choic e she made, the foreseeability of that choice must be1-05-2126

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determined by a

jury and not by

a judge as a matter of law. See Mack v. Ford Motor Co. , 283 I ll. App. 3d 52, 57 (1996) ("To escape liability, defendant must demonstrate that the intervening event was unforeseeable as a ma tter of law. [Citation.] A foreseeable intervening force does not break the chain of legal ca usation. [Citations.] Furthermore, the precise nature of the intervening

caus e nee d not b e for

esee n [citation], and where varying inferences are possible, foreseeability is

a question for the jury [citation]" (emphas is added) ); Robertson v. General Tire & Rubber Co. , 123 Ill. App. 3d 11, 14 (1984) ("The extensive testimony of this experienced mechanic al engineer, along with all the other e vidence presented by

the plaintiff, provided enough evidence for the issue of the existence of a duty and the issue of foreseeability to go to the jury") . Her act as the intervenor is neither neglige nt, illegal, nor otherwise subject to public policy restrictions. See Farley , 195 W. Va. at 684, 466 S.E.2d at 535 ("By definition, if a woman has a constitutional right to decide whether to carry an unborn child to term or abort it, then the act of aborting is not tortious" ); Asbury , 265 Mont. at 19, 873 P.2d at 938-39 (1994) ("Appellants' individual religious and mora l beliefs are nei ther inc luded in, n

or rele vant to, [the ] statutory

defense s [raised]" ); Hall , 250 Ill. App. 3d at 765 ("if the propose d treatment could result in an aggra vation of the existing condition or the development of an additional condition of ill health, or if the prospect for improved health is slight, then there should be no duty to undergo the treatment. * * * I t is not the plac e of the c ourt or th e jury to evalua te a patie nt's re asons for

declinin g surg ery or trea tment, if the risks are recognized"). Finally, the dissent attempts to ascribe to our decision the patronizing characterization of it being driven by

"compa ssion" or

"humani ty. " These

terms suggest tha

t we are attemptin

g to1-05-2126

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subvert o ur lega l analy sis to acc ommodate

to our own

sym pathies. That cha

racter ization is

unwarr anted. Quite to the

contrar y, o ur concl usions ar e compel led by

the proxima

te cause analysis which must be applied unde r the Act as well as at common law. The attempt by the dissent to a

void its co nsequences woul d theref ore ref lect a ne gative

reactio n to a res ult which, to its author, may well be c ounterintuitive. However, the result which must be reached he re cannot draw on any

extrinsic moral, political, or affective considerations, but can only be premised on established, appli cable le gal pri nciples a nd analy sis. The di ssent ca

nnot by mere rh etoric accomplish what remains only within the power of the legislature. C. The Merits: Survival Act Finally, Williams contends that the circuit court e rred when it granted Manche ster summary judgmen t again st her co

unt broug ht under t he Surviva

l Act for Baby Doe's antemortem injuries. We disagree. The "established purpose of the plain language of our Survival Act, *** i s to compe nsate the estate of

the decedent fo r the damages and injuries h e suffered prio r to death." National Bank of Bloomington v. Norfolk & Western Ry . Co. , 73 Ill. 2d 160, 180 (1978). Williams argues that Baby D oe suffered a cognizable injury prior to death, in the form of an increased risk of futur e injury , an asse

rtion we have alr

eady found to be

problema

tic above . Howeve

r, even i f Williams

were c orrect

in her ide

ntificat ion of an i

njury , she did not make be low and do es not pre sently make any attempt to

show wha

t antemortem damages Doe may have incurred therefrom. Williams' failure to address this issue is particularly perplexing in that the lack of evidence of damages was a crux of the circuit cour t's order granting summar y judgment to Manc

hester on the1-05-2126

4 Justice Ann Burke, who was a member of the orig inal panel assigned to this appeal, has been elevated to the I llinois Supreme Court, and Justice Jill K. McNulty has been assigned to the panel in her place. Justice McNulty has read the briefs and record, a nd listened to the tape of the oral argument. -57- survival count. As the court said in Franks v. North Shore Farms, I nc. , 115 Ill. App. 2d 57, 65 (1969): "A legal injury

is a wrongful act resulting in damag es. As a general rule to constitute a valid cause of action, there must be both injury and damages. An action cannot be maintaine d for an in ju ry without damage. I

njuria absque damno does not constitute a cause of action." See also Ellig v. Delnor Community Hospital , 237 Ill. App. 3d 396, 401 (1992) ("A sur vival action allows for the recovery

of damages for injuries sustained by the deceased up to the time of death" ). Thus, by de clining to even a ddress B aby

Doe's antemortem damages, Williams has given us no basis on which to find error in the circuit court' s order granting summary judgment on her sur vival cou nt. III. Conclusion For all t he fore going

reasons , we rev erse in p art and a ffirm in p art, and

remand t he cause for further proceedings c onsistent with this order. McNULTY, 4 J., concurs.

JUS TICE CAH ILL, dissent ing: Irespectfully disa

gree with the majority

's position that a cause of action lies u nder the wrongful death sta

tute unde r these f acts o r that the prima

ry issue in thi s case " is groun ded in1-05-2126

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established

tort principles surrounding proximate cause." Slip op. at 18. Ibelieve we must decide,

as a matter of law, whether the language of the Wrongful Death Act permits a cause of action based on the fa cts of this case. T wo prelim

inary observa tions: 1) "Statutes that are

inderog ation of the common l aw will be strictly construed andnothing will be read into such statutes by intendment or implication. Even if a statute is remedi al in natu

re, if it i s in derog ation of the commo n law, it will be strictly construed when

determin ing whic h persons come with

inits cover

age. T hus, the meaningof a

statute and the extent to which it changes the common law will not be exte nded b eyond tha t whi ch the langua ge of the sta tute abso lutely

require s by

its express terms or

by necessary implicati on." Cherney v. Soldinge r , 299 Ill. App. 3d 1066, 1072, 702 N.E.2d

231 (1 998), citi ng 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 w ere we

to specul atively

agree with plai ntiff's argument reg arding the legisl ature's motive in enact ing the statute, it is irrelevant. [ Henry v. S t. J ohn's Hospital , 138 I ll . 2d 533, 542 , 563 N.E. 2d 410 (19 90).] Our o nly function is to enforce the law as enacted, and we may not eng

raft new or

differe nt provisio

ns onto the statute. In Ralston v. Plogger (1985), 1 32 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 leg islature

itself to r evise the Wrongfu l Death Act to make it more compatible with the emergent doctrineof comparative negligenc e. "1-05-2126

-59-

Hais t v. Wu , 235 Ill. App. 3d 799, 813, 601 N.E.2d 927 (1992). My point in cit

ing to these cases is to sugg est that the legis lature never contemplate d a cause of action for wrongful

death that would embrace theunborn. That we now have a body of law that invests a fetus with the rights attributable to persons after a live birth is unmistakable. B utthis does notalter my

view that the Wrong ful Deat

h Act ca nnot support a

cause of action ba sed on the

facts of this case. The majority

correctly transcribes the wrongful death statute. See slip op. at 17. Al thou gh the fetus here was a "person" within the meaning of the statute (see 740 IL CS 180/2.2 (West 2002); Seef v. Sutkus , 145 Ill. 2d 336, 338, 58 3 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 knowin

g under the fac ts of this case whether thefetus had suffered an actionable injury before death. The lang

uage o f the stat

ute is clear: a person ma

y be held liable for the death of another only if the decedent would have had a direct cause of action aga inst the wrongdoer had death not ensued. Kessinger v. Grefco, I nc. , 251 Ill. App. 3d 980, 983-88, 623 N.E.2d 946 (1993).

" '[T]he liabi lity

*** created [by the

wrongful death statute] depends upon the condition that the deceased, at the time of his death, had

he contin ued to live , would have had a right of action aga inst the same person or persons for the in juries

su staine d. If the deceased had no right of action at the time of his death, the p ersonal representative has none under the [ Wrongful Death Act

].' (Em phasi s added.)" Kessinger , 251 Ill. App. 3d at 984, quoting Biddy v. B lue Bird Air Service , 374 Ill. 506, 513-14, 30 N.E.2d 14 (1940).1-05-2126

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See also Varelis v. Northwestern Memorial Hospital , 167 Ill. 2d 449, 455, 657 N.E.2d 997 (1995); Moone y v. City of C hicago , 239 Ill. 414, 423, 88 N.E. 194 (1909). The fetus he

re was te rminated as a res ult of Willia

ms ' leg al, voluntar

y c onsent to a

bort. There is no evidence in the record that the fetus was injured a s a direct result of the car accide nt. The speculation

of reco rd that there was radiation injury to the fetus as a result of the emergenc y 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 thefetus 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 wa s only in the first

trimeste r of deve lopment. N or could he speci fically identify the injury that the fetus might

have suffered. "Although a n expert may not gue ss, conjecture,

or surmise a s to a possi

ble caus e for the

inju ry, an expert can testify in ter ms of possibilities or probabilities so long as the opinion is b ased on a reasona ble degree of medical c ertainty." Wojcik

v. City of C hicago , 299 Ill. App. 3d 964, 978, 702 N.E .2d 303 (1998). Nothing in this record indicates that phy

sicians tr eating Williams tes tif

ied or were prepared to testify that, based on a

re asonable

degree of medical ce

rtainty, the fetus had suf

fered an injury

as a consequence of t

h e accident or the hospital treatment of Williams that would give rise to a direc t c ause of action had death not ensued. The majority's proximate cause analysis and

conclusion that the negligence of Ma nchester

can be causally linked to the

abortion extends the

reach o f the wrongful de ath statut e bey ond its pla

in language. Pu t a no th er wa y, the proximate cause analy sis of the majority relies on a the ory that the1-05-2126

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"death" of the fetus is the "injury" that supports the wrongful death cause of ac tion. The analy

sis, Irespectfully submit, writes out of the Wrong ful Death Act the requirement that there must have been an actionableinjury to the fetus with recoverable damag es that could have been maintained had death not intervened. That is the fault line I perce ive in the scholarly a nalysis of the

majority, and for that reason I r

espectfully dissent fr

om this humane and compassionate opinion. The public pol icy

implic ations lurking below the surface in this case ar e also a matter of

concern. If there is to be a c ause of action in the name of the f etus base d on this kind of case–an undesired butpossibly prudent therape utic abortion for the sake of the mother's heath–the scope of that action should be addressed by the legislature. I be lieve the order o f th e circuit court granting summary judge

ment to Manchester on Williams' wrongful death claim should be af firmed.