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Pennsylvania Superior Court panel allows unrestricted damages in botched sterilization case
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A Pennsylvania woman who became pregnant and had an abortion despite previously having had a sterilization procedure may move her case forward, the state Superior Court has ruled, refusing to limit emotional distress damages to a six-week postnatal period.
According to the opinion in Catlin v. Hamburg, the doctor who performed the sterilization procedure recognized that a medical clip used for surgical contraception, known as a Filshie clip, was failing on the right fallopian tube and opted -- for that side only -- to perform another type of procedure in which part of the fallopian tube is removed.
The woman ended up becoming pregnant, but terminated her pregnancy because it was clear the baby was suffering congenital abnormalities unrelated to the sterilization treatment, according to her attorneys. After the abortion, the patient had excessive bleeding and anemia and, after exhausting other medical treatments, ended up having a total hysterectomy in 2001.
That year, she brought a medical malpractice action against Marc Hamburg, the doctor who performed the sterilization in 1999 and the hospital where it was performed, Saint Francis Hospital in New Castle.
In an unanimous decision, a three-judge Superior Court panel also said the woman would be allowed to call on an expert who believes that, because the doctor recognized one surgical method was failing for the right fallopian tube and went another route, he should have done the same thing to the left side.
By not doing so, the expert has said, Dr. Hamburg breached the standard of care.
The decision reverses a Lawrence County judge's grant of summary judgment in favor of Dr. Hamburg. The lower court had agreed with Dr. Hamburg that the plaintiff should not be able to submit the opinion of her medical expert because he cited no medical literature or treatise in his expert report.
But the Superior Court, led by Judge Judith Ference Olson, disagreed.
The decision clears the way for the plaintiff to use the expert as well as to attempt to recover damages beyond the prenatal and six-week postnatal periods that her opponent had argued the court was bound to impose.
A jury would decide the case along the standards of traditional medical malpractice actions, in which there are no limits on non-economic damages.
The panel, which also included Judge David N. Wecht and Senior Judge William H. Platt, said it was an error for the trial court to equate the abortion with a birth and then, in turn, limit damages to a six-week period after the abortion.
A line of Pennsylvania cases dating back to Mason v. Western Pennsylvania Hospital in 1982 dealt with instances where the negligently performed sterilization led to pregnancy, but nonetheless healthy babies.
But what happens, in terms of damages, when the mother becomes pregnant with a child and opts to have an abortion in the face of birth defects?
Following this case, it appears a jury may be left to decide.
"The facts of this case are readily distinguishable from Mason and its progeny," Judge Olson said in her 19-page opinion. "Although pregnancies occurred in all of the previously cited cases, as well as the case presently before us ... all of the women in the previously cited cases carried infants to term and ultimately gave birth."
"Pennsylvania appellate courts determined that in such cases, only prenatal through postnatal pain and suffering was compensable because the benefits of raising a child outweigh an unwanted birth," she went on.
"In this case, however, [the plaintiff] opted to abort the fetus and, accordingly, there was no birth."
The public policy used in Mason -- "the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child" -- therefore did not apply, Judge Olson said.
And because there was no birth in the instant case, Judge Olson said the case was more akin to traditional medical malpractice cases, and shouldn't be bound by "post-natal" time frames.
The panel also unanimously agreed that the opinion of Bruce L. Halbridge, the woman's medical expert, should be allowed to reach trial.
Dr. Halbridge, a board-certified obstetrician gynecologist, pointed to the standard of care that a doctor should perform the more secure and safer surgical procedure when the first attempted method is seen to fail and there exists a secondary option to accomplish the same goal.
First Published November 12, 2012 12:00 am
