Chief U.S. District Judge Nancy Rosenstengel gets to decide whether the estate of a stillborn baby can recover damages.
The question arises from a $135 million suit Shantela Stackhouse of Granite City filed against Alton Memorial Hospital and the United States.
She seeks recovery on her own behalf under wrongful death law and as estate administrator under the Illinois Survival Act.
Hospital counsel Russell Makepeace of St. Louis moved in June for judgment on the pleadings against the survival claim.
“Under Illinois law a person cannot accrue causes of action until birth,” he wrote.
U.S. Attorney Rachelle Crowe joined the motion.
Stackhouse’s counsel Keith Short of Alton opposed it on July 19, claiming Illinois appellate courts and the Supreme Court haven’t confronted the issue.
“Plaintiffs argue that because there is no case law directly prohibiting a cause of action, this court can extend Illinois common law to provide for such a cause of action,” Short wrote.
Short filed Stackhouse’s suit in Madison County circuit court in 2021.
Alton Memorial and its nurse Diane Lahey were named as defendants.
Southern Illinois Health Foundation and its physicians Jamie Hardman and Geoffrey Turner were also named as defendants.
Assistant U.S. attorney Daniel Pfeffer removed the complaint to district court in 2022, asserting government responsibility for Hardman, Turner and their employer.
He stated the government deemed Hardman and Turner its employees pursuant to law on federally supported health center assistance.
He moved to dismiss them with prejudice and Rosenstengel granted it.
Later that year a parallel suit started and at Rosenstengel’s direction Short amended the first complaint to add facts from the second.
He claimed Alton Memorial admitted Stackhouse to the hospital with a viable and healthy boy C.M. at 9:35 a.m. on July 23, 2019.
He claimed tests revealed high blood pressure and a high level of protein in the liver.
He claimed Turner discharged her at 11:50 a.m; he claimed she was too unstable for discharge; and he claimed an ambulance brought Stackhouse to Gateway Regional medical center at 3:31 p.m. with low blood pressure and vomiting.
He claimed she experienced constant pain with fluids wide open; he claimed staff couldn’t get fetal heart tones; and he claimed Stackhouse and C.M. suffered 100% placental abruption and were taken for cesarean section.
He claimed resuscitation was initiated and the child was pronounced expired at 4:16 p.m.; he claimed Stackhouse required emergency treatment the next day.
He sought $15 million for each of nine counts.
Stephen Williams of Belleville conducted mediation last year and the parties didn’t settle.
In February of this year Rosenstengel set trial next January.
The parties set another mediation on June 21, this one with Michael Geigerman of St. Louis.
Two days before mediation Alton Memorial moved to dismiss survival claims.
Makepeace claimed the Survival Act allows recovery of damages for injury sustained by a decedent up to the time of death.
“Unlike damages for wrongful death, which address the injury suffered by the deceased’s next of kin due to the loss of the deceased, a survival action allows for the recovery of damages for injuries personally sustained by the deceased up to the time of death,” he wrote.
He claimed the Survival Act allows a representative of an estate to maintain statutory or common law actions which had already accrued to the decedent before he died.
“C.M. never accrued a personal injury cause of action under Illinois law,” he wrote.
“There is no recognized claim in Illinois that can be prosecuted by a fetus.”
Mediation with Geigerman two days later didn’t succeed.
Three days after that assistant U.S. attorney Kyle Oehmke joined the hospital’s motion.
Short responded to the motion on July 19, stating the Illinois Supreme Court rejected live birth as a condition of recovery for injuries in the context of wrongful death.
He claimed requiring live birth under a survival action would produce a result no less absurd, incongruent and indefensible than that court sought to avoid.
He claimed the Supreme Court consistently interpreted wrongful death law to require that a decedent could have brought, at the time of his death, an action for damages.
He claimed the Court understood the stillborn child had a viable right of action to recover for injury in his mother’s womb at the time of death had death not ensued.
“Because the Illinois Survival Act is does not expressly state that the common law claim for prenatal injury survives or abates at the time of fetal demise, the requirement to liberally construe the Act to prevent abatement compels the conclusion that the common law claim is preserved by the Illinois Survival Act,” he wrote.
This article was first published in Madison Record.
