Chief U.S. District Judge Nancy Rosenstengel granted judgment to the United States on Feb. 18 against a claim that an unborn fetus can recover damages under the Illinois Survival Act.
“The court respectfully declines the invitation to create new law,” she wrote,
She quoted Seventh Circuit appellate judges who wrote, “Federal courts are loath to fiddle around with state law.”
Those judges wrote, “Though district courts may try to determine how the state courts would rule on an unclear area of state law, district courts are encouraged to dismiss actions based on novel state law claims.”
Plaintiff Shantela Stackhouse of Madison County continues to pursue claims of wrongful death and medical malpractice against the government.
Her counsel Keith Short of Alton filed suit against Alton Memorial Hospital at Madison County circuit court in 2021.
Short also sued two doctors and their employer, Southern Illinois Health Care Foundation.
He claimed defendants discharged Stackhouse on the morning of July 23, 2019.
He claimed the placenta ruptured from the inner wall of the uterus about six hours later and an ambulance rushed her to Gateway medical center.
He claimed doctors performed a delivery and tried resuscitation for 30 minutes before pronouncing death.
The foundation and the doctors removed the complaint to district court and the government substituted for them.
Last June, the hospital moved for judgment against the survival claim and the government joined the motion.
In August, Rosenstengel set bench trial to start in March.
Stackhouse and Alton Memorial reached an agreement later that month and Rosenstengel approved it in October.
Rosenstengel’s current order explained the difference between survival and wrongful death.
She found a survival action allows damages for injury sustained up to the time of death and a wrongful death action addresses injury to next of kin.
She found neither the Illinois Supreme Court nor the legislature has authorized a survival action by the estate of a stillborn child for prenatal injuries.
She found the question “fraught with sensitivities that reach well beyond the legal arena.”
“That is all the more reason to avoid embracing plaintiff’s survival claim,” she wrote.
She quoted Seventh Circuit judges who found that choosing between an interpretation that reasonably restricts liability and one that greatly expands liability, federal courts should choose the narrower path.
“That is what the court will do here,” she wrote.
Assistant U.S. attorney Kyle Oehmke represents the government.
This article was first published in Madison Record.
