Woman sues doctors after failed abortion

[laylo]

She is entitled to a refund for the abortion.

[valkyrie]

Originally Posted by laylo

She is entitled to a refund for the abortion.

What if instead of a botched abortion, this was a case where the doctor, say, amputated the wrong leg during surgery. Would the patient be entitled only to a refund of the cost of the surgery, or would there be additional damages based on the loss of the leg?

[DSTCHAOS]

Originally Posted by valkyrie

What if instead of a botched abortion, this was a case where the doctor, say, amputated the wrong leg during surgery. Would the patient be entitled only to a refund of the cost of the surgery, or would there be additional damages based on the loss of the leg?

That has happened before.

I believe the person won a ton of money because he still had to get the correct leg amputated. He's now a parapalegic(sp).

[shinerbock]

Shaheen v. Knight comes to mind.

On another note, this lawsuit really disgusts me.

[laylo]

Originally Posted by valkyrie

What if instead of a botched abortion, this was a case where the doctor, say, amputated the wrong leg during surgery. Would the patient be entitled only to a refund of the cost of the surgery, or would there be additional damages based on the loss of the leg?

I don't see how that's analogous to this case. The woman got herself pregnant, a "mistake" she made herself and wanted "fixed", in her eyes. The doctors failed to fix it for her. They didn't cause her any damage. Just as she was free to choose to abort, after the child was born she was free to choose placing the child with one of hundreds of families on waiting lists to adopt. Instead, she chose to raise her. Now she wants those who failed to fix her problem to be responsible for its existence and entire future? (For the record, I don't personally consider children to be problems).

[DSTCHAOS]

Originally Posted by laylo

The doctors failed to fix it for her.

Hence, why the lawsuit makes sense and why valkyrie's analogy loosely applies.

[laylo]

Originally Posted by DSTCHAOS

Hence, why the lawsuit makes sense and why valkyrie's analogy loosely applies.

I disagree. Her analogy was about creating an additional problem. Furthermore I don't buy the comparison of gangrene or any other unfortunate condition to pregnancy, something a middle-aged American woman has had the means and knowledge to prevent for most of her life.

If she were suing for prenatal care and delivery costs, that'd be one thing. Maybe emotional distress. But in general you don't get compensated for the choices you make in life.

How do you not perform an aportion correctly? Is the child damaged? How sad this all is...

[DSTCHAOS]

Originally Posted by laylo

But in general you don't get compensated for the choices you make in life.

People get compensated for their choices everyday.

Society just creates new rules when it comes to women's reproductive systems. Another way of controlling a group of people.

[laylo]

Originally Posted by DSTCHAOS

People get compensated for their choices everyday.

Society just creates new rules when it comes to women's reproductive systems. Another way of controlling a group of people.

Well, I don't believe others ought to get sued for the things a person does to him or herself, whether it involves reproduction or not.

[unspokenone25]

Originally Posted by laylo

I disagree. Her analogy was about creating an additional problem. Furthermore I don't buy the comparison of gangrene or any other unfortunate condition to pregnancy, something a middle-aged American woman has had the means and knowledge to prevent for most of her life.

If she were suing for prenatal care and delivery costs, that'd be one thing. Maybe emotional distress. But in general you don't get compensated for the choices you make in life.

Actually, there's case law in different states that supports her claim for medical malpractice. I think she might be able to recover some of her damages if not all of them. I wonder if she's also suing for tortious assault, IIED, and gross negligence. This scenario was once used as an MBE question on the Bar.

[Kevin]

As unspokenone says, the law of medmal differs from state to state. I think here though, the woman clearly had the ability to mitigate her damages and chose not to.

When we talk about negligence, in very simple terms, we are talking about someone who breaches a duty, is the proximate cause of the harm and somehow damages the plaintiff. If any of those elements are absent, your basic negligence claim (which is mostly what a medmal claim is) doesn't fly.

In medical malpractice, to establish the "duty" aspect, there must first be the establishment of the "standard of care." Usually, this is done with experts. The duty differs from state to state, but mostly, the standard of care consists of whatever the level of care, skill, ability, etc. that the reasonable doctor/caregiver in that locality would be (the standard of care in Hooker, OK, pop ~2,000 would differ from Dallas, TX). Before establishing that this doctor owes anything, it must somehow be shown that he didn't do something he should have reasonably done. No medical procedure comes with a 100% guarantee. Since we don't know whether the doctor breached his duty of reasonable care, to even talk about damages, I think we're jumping the gun.

Even assuming the doctor breached his standard of care, the defendant here has some pretty good defenses. Most states recognize that the defendant cannot sit idly by and watch her damages increase when the defendant could reasonably do something to stop. I can't for the life of me comprehend how the defendant could not determine that after the procedure, she was still pregnant. It seems to me that there would have been a few clues. She should have gone in and been checked out again... even failing that, as many have said here, she could have adopted out. Instead, she has decided all on her own to take the most expensive path. I'm also thinking of the "last clear chance" defense -- that defendant here had the last clear chance to avoid the injury. She chose not to, therefore, anything after her choice should be her fault.

It's interesting to me that Plaintiff's attorney has contacted the media regarding his case (I'm assuming that because we're hearing about the case now... it's not as if the media goes out and finds stories like this on its own). That's pretty questionable ethically. It seems that he may have been trying to blackmail the doctor into settling and the doctor's insurance company called his bluff. My feeling is that this case goes nowhere or is settled for nuisance value.

[KSigkid]

Originally Posted by valkyrie

What if instead of a botched abortion, this was a case where the doctor, say, amputated the wrong leg during surgery. Would the patient be entitled only to a refund of the cost of the surgery, or would there be additional damages based on the loss of the leg?

Dude, you sound like my torts professor.

[shinerbock]

I feel a little better about this now that I think about it. She is going to be suing an abortion doctor, after all. I really could care less what happens to him/her in this. Its too bad any judgment will be paid via malpractice insurance.

[UGAalum94]

Wouldn't a more appropriate analogy be a doctor surgically attaching an extra leg, as opposed to the amputation comparison? Instead of missing something that she can't replace, she gained something that she's elected to keep.

If she were suing for damages related to pain and suffering in terms of the pregnancy and birth, I could sort of see it. But no one is making her keep the kid that she intended to abort. To me that seem like an elected decision very unlike the amputation example.

It's just so weird: how could she and doctors that she visited not know she was 20 weeks pregnant?