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New York Appellate Court Hears Medical Malpractice Case for Abortion Proceedure


An unmarried woman got pregnant. She discussed the pregnancy with her boyfriend and they determined that they were unable to care for and rear a child at this time. The woman decided to have an abortion. She went to an advertised abortion clinic. She was asked to fill up forms and wait until a doctor can see her. In the meantime, a nurse took her blood pressure and her medical history. She was also asked to pay in cash for the abortion procedure.

When the doctor was available, the unmarried woman was brought to an examining room and was examined by the doctor. The doctor explained how the abortion procedure would be performed and informed her that she would experience cramping. She was told to take Tylenol for the pain and to come in for a follow-up after two weeks. The doctor then performed the procedure on her. After the procedure, the nurse injected her with RhoGAM because she was Rh-negative. She was charged $25 dollars for the injection. The unmarried lady went home and took Tylenol for her cramps. A New York Injury Lawyer said the cramps continued and she just continued taking Tylenol. She decided to return for a follow-up check-up at the abortion clinic but there was a snow storm on the day of her appointment and so she was unable to go to the clinic.

The abortion clinic received a pathology report which suggested that the unmarried woman was still pregnant and the abortion procedure was unsuccessful. They did not call or inform the unmarried lady. They did not tell her to come in for another abortion as the first one was unsuccessful.

The lady was at work when she felt extreme pain. She asked her boyfriend to bring her to a hospital. While in the waiting room of the emergency room of the hospital, she experienced a pressure in her abdomen. She went to the bathroom and she felt something fall out of her. In the toilet bowl, she saw a four and a half inch fetus and much blood. She started screaming. Medical personnel came to get her from the toilet stall.

The fetus was still attached to the umbilical cord and the placenta was still inside the unmarried lady’s uterus. A Long Island Personal Injury Lawyer said the medical personnel delivered the placenta and cleaned out her uterus. She was in the hospital for two days.

The lady suffered post-traumatic depression, nightmares and sleeplessness. She became withdrawn and refused to resume sexual relations with men for fear that she would again get pregnant.

She sued the abortion clinic for negligence and medical malpractice for the unsuccessful abortion, for failing to inform her of the unsuccessful abortion which she alleged to have caused her extreme pain and emotional distress. She also claimed that she was psychologically traumatized when she miscarried and saw the fetus.

At the trial court stage, the abortion clinic appeared but later, their lawyers withdrew their appearance and they did not participate. The doctors defaulted and did not even file an answer. After the trial, a Westchester County Personal Injury Lawyer said the jury awarded the unmarried woman $135,000.00 in damages.

The abortion clinic and the doctors ask for a new trial. On the appeal level, the court was constrained to reduce the award to $125,000. The abortion clinic and the doctors appealed from this reduced award. They claim that the complaint should be dismissed.

The only question before the Court is whether or not the complaint should be dismissed for failing to state a cause of action.

On the defendant’s claim that the pain experienced by the unmarried lady was a necessary accompaniment of the childbirth process, the Court ruled that the lady’s injuries were not a natural part of child birth. She had an illness or condition for which she sought treatment and the doctors failed in their duty to care for her.

On the defendant’s claim that the lady cannot claim for emotional distress from seeing her stillborn fetus, the Court held that the lady proved her own personal and direct personal injury: she suffered intense pain for which she had to be hospitalized. The unsuccessful abortion caused her to expel her fetus and she had to undergo uterine curettage (scraping of the uterus) which is a painful procedure.

The lady also did not claim for any pain or injury for the aborted or miscarried fetus. She only claims damages for her own personal physical and emotional injury. She did not sue for damages arising from negligence and medical malpractice from what happened to the fetus but her suit is based on what happened to her when she underwent a spontaneous miscarriage.

The Court affirmed the reduced award of $125,000 for the pain and emotional distress.

An attorney must prove a duty of care that a doctor breached. Or, in the alternative, a skilled lawyer has to prove that in performing the duty of care, the doctor deviated from accepted medical procedures and standards. At Stephen Bilkis and Associates, their legal team can help advice you as to the viability of your claim for medical malpractice. They can assist you in gathering evidence, drafting your complaint and even deposing witnesses. Call Stephen Bilkis and Associates today and schedule a free consultation.

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