Woman sues doctors after failed abortion

[Kevin]

Originally Posted by shinerbock

Kevin, well I certainly don't think the defense counsel will make it about abortion, but it will be impossible for a lot of people to separate the legal issues from their personal feelings. Jury selection for this would be fun.

Morally, it's a wash, IMHO. She wanted an abortion and the doc was to perform it. A pro-lifer them as equally morally deficient. On one hand, they might want to punish the doc for performing abortions. On the other, they're not going to want to reward the woman for seeking one.

[shinerbock]

Originally Posted by Kevin

Morally, it's a wash, IMHO. She wanted an abortion and the doc was to perform it. A pro-lifer them as equally morally deficient. On one hand, they might want to punish the doc for performing abortions. On the other, they're not going to want to reward the woman for seeking one.

I agree, mostly. However, I think people may have trouble compensating the woman. The defense could make the point that a judgment wouldn't be harming the doctor, because the med mal insurance would pay. However, I imagine the judge would be pretty reluctant to allow the jury to hear much of that.

[Kevin]

Originally Posted by shinerbock

I agree, mostly. However, I think people may have trouble compensating the woman. The defense could make the point that a judgment wouldn't be harming the doctor, because the med mal insurance would pay. However, I imagine the judge would be pretty reluctant to allow the jury to hear much of that.

Discussion of insurance coverage wouldn't get into the courtroom, at least not for that purpose. You'll learn that in your evidence class.

[RoyalEmpress33]

I wonder what the mother is going to do/say when that child finds out...this is sad. Although I don't agree with abortion, she should get a refund since she claims the procedure wasn't done correctly. But why does she have to keep the child? If her financial issues are that much of a problem, just give the baby up for adoption and be done with it.

[shinerbock]

Originally Posted by Kevin

Discussion of insurance coverage wouldn't get into the courtroom, at least not for that purpose. You'll learn that in your evidence class.

Thanks, sport.

[Kevin]

Originally Posted by shinerbock

Thanks, sport.

Anytime.

[ASUADPi]

I'm reading the article and already I've found "holes" in her defense.

1) I've never had an abortion but don't you A) bleed and B) have to come back for a post op? If that is true, 1) why didn't she notice "omg I'm not bleeding or in pain" and 2) why didn't she go to her post op?

2) The second doctor that she saw in July is just as culpable because supposedly he didn't detect the pregnancy at 20 weeks. Why is she just sueing the planned parenthood doctors? She should be suing him? (arguement about her motives for just suing them).

3) September rolls around, how the heck could you not know you are still pregnant? As a lawyer I'd be asking her, did you get your periods? If she say's no, I'd be like "hello, think about that for a second". Most women when we miss a period, we freak out. We wanna know why we are late. And if you're sexually active a pregnancy test is usually the first thing taken. I just don't get how a women can claim that she "didn't know" she was pregnant.

4) Yeah the abortion didn't work but she doesn't have to keep the child. It is called adoption. She is using this child for money, plain and simple. Which is completely unfair to the child.



She will probably win some money for the fact that the abortion was botched but I highly doubt she will win for expenses for the child. She doesn't have to keep the child. Right there it was her choice. The doctors shouldn't be responsible for that choice.

[Kevin]

I have a hard time awarding someone based on a failed medical procedure.

Medical procedures are never 100% effective, and if as you say, she didn't go in for the post-op work, she virtually assurd that.

[lyrelyre]

Two thoughts:

First, I remember (and it's been a few years) a couple torts cases that I feel are somewhat analogous. A man had an unsuccessful vasectomy and sued the doctor when he had a(nother) child. His suit was dismissed I believe. My torts professor said that no court has allowed a suit for “wrongful birth.”

Second, the timetable seems suspicious to me. She finds out she is pregnant in March, has abortion in April, and has baby in December (almost exactly 8 months after the abortion). Is it possible that the baby is not the same one that was aborted (that she got pregnant again almost immediately)?

[ASUADPi]

Originally Posted by lyrelyre

Two thoughts:

First, I remember (and it's been a few years) a couple torts cases that I feel are somewhat analogous. A man had an unsuccessful vasectomy and sued the doctor when he had a(nother) child. His suit was dismissed I believe. My torts professor said that no court has allowed a suit for “wrongful birth.”

Second, the timetable seems suspicious to me. She finds out she is pregnant in March, has abortion in April, and has baby in December (almost exactly 8 months after the abortion). Is it possible that the baby is not the same one that was aborted (that she got pregnant again almost immediately)?

I never thought of it that way.

Okay the article said she went in for the abortion in March 04 and that she was 20 weeks in July 04. Well counting back 20 weeks from the last week in July, it would mean that she got pregnant March 18th time frame. I highly doubt she would know she was pregnant by March 31st. Most, not all, women don't figure out they are pregnant until they are about 3-4 weeks along.
It seems like she would have had to have gotten pregnant late February, early March (prior to the 18th) for her to 1) discover her pregnancy and then have an abortion.
I'm sure that is something the defense will bring up because it is very possible that she had an abortion and then got pregnant again almost right away.

Plus, how would she have known she was 20 weeks in July when the doctor "she claims" she went to "didn't figure out she was pregnant"?

I don't know there is just so many holes in her defense. As an attorney you could really shread it to peices. Which is excatly what the lawyers will do (since heck it is their job).

[MysticCat]

Originally Posted by lyrelyre

My torts professor said that no court has allowed a suit for “wrongful birth.”

Actually, according to at least one court,

Since Roe, an overwhelming majority of jurisdictions has recognized wrongful birth claims. See Lininger v. Eisenbaum, 764 P.2d 1202, 1208 n. 9 (Colo.1988) (citing numerous cases in which the cause of action has been recognized); see also Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 YALE L.J. 1488 (1978) (discussing the issue and concluding that imposing liability on physicians vindicates societal interest in reducing the incidence of birth defects); but see Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985) (denying wrongful birth claim), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986).

Walker by Pizano v. Mart, 164 Ariz. 37, 39 n3, 790 P.2d 735, 737 n3 (Ariz. 1990).

This isn't a wrongful birth action, though. "Wrongful birth" is a tort action where "the parents of a child born with birth defects allege that the negligence of those charged with prenatal testing or genetic counseling deprived them of the right to make a timely decision regarding whether to terminate a planned pregnancy because of the likelihood that their child would be born physically or mentally impaired." Id.

This what the Arizona Court, at least, called a "'wrongful conception or pregnancy.' In such actions, parents of a normal but unplanned child seek damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device." Id. See also University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983).

Oh, I need a life.

[lyrelyre]

Originally Posted by MysticCat

Oh, I need a life.

I think law school does it to you.

Like I said, it has been a few years. I also don’t practice tort law. That’s just what I remembered my torts professor saying. Maybe it was from the Restatement and not a study of each individual state’s precedent.

Regardless, it is an interesting case. I’m curious to see if they will litigate or settle.

[DSTCHAOS]

Originally Posted by MysticCat

Oh, I need a life.

LOL.

You're fine because you're typing about this where it applies. If we have a thread on green apples and you type about law, then you should worry.

[shinerbock]

I need a majority rule here.

[ISUKappa]

Some people I know who've had a D/C (basically the same procedure as an abortion for missed miscarriages) that have said their bleeding is minimal and only lasted a few days.

I can understand how a woman can not know she's pregnant if 1) she's overweight and 2) she has a hormonal imbalance such as PCOS where she would not have regular menstrual cycles. But by 20 weeks, the second Dr. really *should* have been able to tell she was pregnant. Even an external abdominal exam should have tipped the Dr. off that *something* wasn't right, unless again, the woman was overweight (only because excess fat makes it difficult to feel internal organs thoroughly).

I agree her timeline seems off. If her daughter was born around her due date, the woman would have only been 5 weeks pregnant at the time of the abortion. That's not very far along. (A woman is considered two weeks pregnant at the time of conception and usually doesn't know she is pregnant until she is technically 4 weeks along. So, at the most, the woman could have only known she was pregnant for roughly a week). If her daughter was born 1-2 weeks past her actual due date, it may be more plausible.