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Today, I read a story in my local (note: not US) newspaper about a woman who sued the hospital that performed her abortion at 6 weeks in 1998. Bear with me, the reason is not what you think it is.

At a checkup over 2 months later, it appears that the abortion wasn't completed and she is in fact still pregnant - by now 16-17 weeks. She refuses to undergo a second procedure and ends up delivering a healthy son.

Fast forward to the legal case: the woman sues the hospital for the cost of the delivery and for the costs she incurred caring for her son thus far.

In a civil court, her claim is denied: the court sides with the hospital which argues that she actively declined the option of a second abortion at the time of the checkup. (The hospital also claims that the woman changed her mind and now does want the pregnancy. She denies having said so. There's no written proof of either.) Having declined this option, she cannot establish a causal relation between the botched first procedure and the costs she is suing the hospital for.

Not taking no for an answer, the woman pursues the case to the national High (Supreme) Court. Which rules in her favour, subverting the civil court's judgement: it argues that a 16 week abortion cannot be considered to have the same risk profile as a 6 week abortion, and therefore the woman's unwillingness to undergo it does not absolve the hospital of its responsibility for the first unsuccessful abortion. Furthermore, the court considers it possible but highly unlikely that the woman changed her mind regarding the pregnancy in the 10 weeks between the first procedure and the checkup.

The hospital must pay.


I'm intrigued by both sets of arguments. What say you?

Wow. I have absolutely no idea what to make of that. I want to say that the hospital should be held responsible for screwing up in the first place, but I don't know.

True. What I'm curious about, though, is that every medical procedure has a failure rate. A small one, perhaps, but it's there. People sign waivers for those, don't they? So that the doctor and/or hospital, depending on your local legal system, cannot be held responsible for failure if they can show it wasn't a malpractice case. How should one determine if the failure was due to negligence/malpractice or simply bad luck?
Related (and I haven't been able to find the answer to this particular bit): why wasn't a pregnancy test done ~2 weeks post procedure? Isn't that standard?


That occurred to me, too. Then again, if you're of the opinion that you're saddled with providing for a child because of the hospital's negligence, why stop at claiming the just the perinatal costs? Children do cost more than just that amount.

I think that what I appreciate about the High Court's ruling is that they treat the two choices at two separate moments in time as not dependent on each other. It recognizes that each choice is a result of unique considerations and that its consequences shouldn't be connected to a previous, unconnected choice. I'm not necessarily sure that I'm very happy with the implicit treating of the child as a financial damage post.

Regardless of the woman's attitude toward the pregnancy and regardless of her decisions after the check-up, the fact remains that the hospital ******** up BIG TIME in performing an abortion that didn't terminate the pregnancy. This isn't just a matter of retained products of conception. They ******** up bad enough that the pregnancy continued and went to term. I can't fathom how you screw up that badly. There's some big time negligence involved so yes, the hospital is absolutely responsible for any medical costs she might incur as a result of the pregnancy.

The point isn't about relative safety in the big picture. She consented to a 6 week abortion, not one at 16 weeks. Because of the hospital's negligence (how the ******** do you screw up an abortion at 6 weeks?) she not only had to deal with the risk of the procedure and possible complications, but she was still pregnant and carrying all of the risk that that entails.

Her decisions after the fact don't change the fact that the hospital really screwed the pooch.

That said, I'd limit monetary compensation to prenatal care, delivery expensives, and postnatal care (her 6 week etc., care for any complications like a bad episiotomy or anything else that resulted from the delivery). Choosing to birth and choosing to retain custody of the child are two separate issues.

Even with that failure rate, she should have had follow-up care to determine whether or not it was a complete abortion. Either that follow-up care didn't happen or someone managed to miss the fact that her pregnancy had progressed between her abortion and the follow-up appointment.



Um... I did. That's why I said limit it to delivery expenses and any medical attention the woman might need as an immediate result of labor and delivery (episiotomy care, puerperal infection, etc.), but that childcare expenses would be inappropriate to reward because retaining custody is wholly her decision and not connected to anything the hospital did or failed to do.