Who Can Really Say?

What do you do when you're 16 and pregnant with twins, have an abortion, and then find out months later you're about to have a baby because one of the fetuses was missed during the abortion? You sue.

A Mother who underwent an abortion after learning that she was pregnant with twins is suing the NHS for ?250,000 after one of the babies survived.

Stacy Dow, who was 16 when she found out that she was pregnant, is seeking compensation and damages for the ?financial burden? of raising her daughter. Miss Dow, whose father has had to take on a second job to help to pay for his granddaughter, is claiming for ?loss, injury and damage? suffered at the hands of Tayside University Hospitals NHS Trust.

The teenager, who hoped to train as a nurse, decided to have an abortion as soon as she discovered that she was six weeks pregnant. Days later the procedure was carried out at Perth Royal Infirmary, where doctors advised her that no live material was left in her uterus.

When Miss Dow started to put on weight and her periods stopped, she assumed that it was because of the contraception injection she had been given. The hospital had told her that possible side-effects included weight gain and an erratic menstrual cycle.

Miss Dow said: ?After 33 weeks I went to the GP and he told me I was pregnant. I thought he meant I had fallen pregnant again, and I couldn?t believe it when I was told that it was one of the original pregnancies.?

Will she win? According to the article, another woman received a ?10,000 settlement under similar circumstances in 2001.

I'm unaware of any cases like this in the US (failed abortion results in birth of baby and Mom sues abortion provider), but I remember seeing cases some 25 years ago that went something like this -- man gets vasectomy, man's wife get's pregnant sometime thereafter, Mom and Dad then sue the doctor for the costs of raising junior. The principles between the two cases are pretty close -- in each case a patient contracts with a doctor for a service, the service is performed but doesn't work, and the consequence is the substantial cost of raising a child. The service is a medical procedure provided by a skilled physician, and it's not uncommon to find doctors being sued when they don't perform their medical procedures with the standard of care required. So Mom and Dad win, right?

Wrong. The problem in the US (as far as I know, this is the general rule) is that while yes, you paid for something (a skilled medical procedure) that you should have received and yes, doctors are supposed to use the degree of skill expected and required of them, nevertheless there's no way to adequately measure the damages in the case. The cost of clothing, food, college, etc. can be measured, but the courts that handled the question had a hard time doing the measurement without acknowledging that the consequence of the failed procedure was new human life, which is ordinarily a benefit. To put it another way, you can recover in the US for Wrongful Death, but not for Wrongful Life (or is that Wrongful Pregnancy?). Or so it was 25 or so years ago anyway and I think, still pretty much the rule today.

[Note: there are other scenarios that play out along these lines too, but I'm discussing the bargained-against birth of healthy children.]

This result isn't that surprising. The law that dealt with either breach of contract or medical malpractice developed over hundreds of years and during that time there were exactly zero patients going to doctors for treatment to prevent a pregnancy because those treatments didn't exist. Still, it's not that easy a case on the surface at least because the patient did seek and pay for a service, and we ordinarily expect to get what we bargained for and if not, a winning lawsuit instead.

James Joyner summarizes US law on the subject pretty well: "While one sympathizes with Dow's surprise and the strain an unplanned pregnancy put on her career plans, it's hard to understand a mother suing because her three-year-old is not dead." The common law tradition has a hard time with it too.

[Linked to the Beltway Traffic Jam.]