Australian attorney, Charles Francis, authored an article for the Winter 2003 issue of NLA Review, a publication of the National Lawyers Association. Francis is believed to have won the world’s first known abortion-breast cancer settlements. We are sharing his article with you.
Francis made two particularly important observations in his article. First, he quoted Justice Cardozo who said that:
"[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages."
Francis wrote that Cardozo’s words are "still respectfully quoted as correctly summarising the law on this topic." He further observed that physicians are obliged to inform their patients of all material risks associated with a particular surgical procedure, even though it might not be the "self-created custom" of physicians to do so. He explained:
"In Harbeson v. Parke Davis Inc. the Court indicated that if there is a body of research which suggests a particular risk even though that research is not generally accepted there may be a duty to tell the patient about that body of research."
ABORTION-BREAST CANCER NEWS HEADLINES:
NLA REVIEW: Personal Injury Lawsuits Against Abortionists and the A.B.C. Link, by Charles Francis, Esq., Winter 2003
Amongst those who lend their full support to the so-called freedom of a woman to deal with her body as she chooses, a view point which was translated by the United States Supreme Court in Roe v. Wade into the absolute right to abortion, singularly little attention has been directed to the personal medical harm which results to most women when any abortion is performed on them.
There is a widespread belief that abortion is a safe and simple medical procedure, and that significant harm to the woman concerned only occurs in an occasional isolated case. Despite many malpractice suits in the United States, the abortion industry in America and in Australia still thrives on this popular misconception. Many medical men would be very well aware that this is far from the truth. The unpalatable truth flies in the face of "political correctness" and receives very little attention in the media or even within the medical profession.
In most western countries the public are constantly being told that abortion is "now" a safe procedure and that no-one would want to return to the bad old days when abortions were performed by unqualified back-yarders and as such were dangerous to life and health. As a matter of reality abortion is still a dangerous procedure and there are many risks and consequences inherent in it.
With any general anaesthetic there is always some risk of death, whilst an epidural anaesthetic can occasionally lead to a permanent crippling (whole or partial) of the patient’s legs. The more specific risks such as laceration of the cervix, perforation of the uterus and bowel, resulting incompetence of the cervix, pelvic inflammatory disease, permanent sterility and a host of other complications have been very well documented in the United States by Mark Crutcher in "Lime 5".
In Western Australia, when recently abortion was legalised, the Doctors Legal Safeguards Group detailed most of the risks in a booklet "Abortion Information & The Law" (August 1999) and in England a similar booklet "Induced Abortion" has been published by the Medical Education Trust. A significant problem in the performance of abortions is the question of the actual skill of the abortionist himself. Unlike other fields of medical practice where most doctors (even though money may to a greater or less extent provide a motivation) obtain a very genuine satisfaction from those benefits they are able to achieve for their patients, in relation to medical practitioners working in the abortion industry there is a considerable body of evidence from which it is reasonable to infer that their predominant motive is the enormous income which can be derived from a thriving abortion practice, and that they care little for their patients, if at all.
Before a medical practitioner performs any operation he has an express duty to satisfy himself that the operation is likely to be of medical benefit to the patient. A doctor does not perform an operation merely because the patient requests it. He must first independently assess the patient to satisfy himself that by performing the operation he is conferring a medical benefit on the patient. In fact when a pregnant woman comes to a doctor he has two patients – the woman herself and the child in utero. To each of them as a medical practitioner he owes a duty.
In the practice of abortion the doctor’s duty to the child in utero is conveniently forgotten and there is seldom any genuine inquiry into the question of what is in the best medical interests of the woman concerned. Most abortion clinics are conducted so as to ensure that the abortion (from which the main profits are derived) does take place and takes place quickly. In the United States courses are available for staff to learn how "to sell" an abortion, and these techniques are widely known and practised in the Western world.
Most women who go to abortion clinics are ambivalent as to whether or not they want the abortion to be performed and go there for guidance. Not infrequently it is the husband or partner who wants the abortion, not the woman herself. From the moment a woman enters an abortion clinic, however, or goes to the family planning organisation associated with a clinic, it is highly likely her pregnancy will be terminated, and regardless of possible harm to her.
Ordinarily, very little personal medical history is taken from the prospective patient, and no family medical history. The medical history of blood relatives has considerable relevance to many of the risks of an abortion. In particular, where there are close relatives with psychiatric problems or who have had breast cancer, that is a strong contra-indication for performance of a termination. Counseling by clinics and abortionists is usually of a minimal nature and grossly inadequate.
In Australia in one case where a woman subsequently sued for failure to warn of the risks, the only counselling she had received at the Defendant clinic was performed by a young student who was at the clinic for work experience. Most of the risks of a termination are never mentioned, and those risks that are mentioned are almost invariably down played. Attempts by other persons or organisations to inform women of the risks of abortion are usually met with open antagonism by the abortion industry.
In the Australian Capital Territory (the Australian equivalent of Washington DC) when some years ago legislation was passed requiring women be shown a booklet with relevant abortion information, many of the abortionists objected strongly and indicated openly that they would defy the law and not show women the booklet. Their attitude was that they were medical men and no government should interfere with the way in which they conducted their practices, or the way in which they advised their patients.
When the booklet "Abortion Information & The Law" (mentioned above) appeared in Australia and copies of its were sent to all medical practitioners, it was greeted with considerable hostility by the abortion industry. No reputable surgeon in any other area of medicine would object to other medical practitioners being given all relevant relating to proposed surgery, for which they might refer their patients. Most reputable doctors try to avoid surgery on their patients, if there are other suitable options, because all surgery carries some risks. Abortionists seldom mention any other options, such as the adoption of the child.
When an ultra sound is performed prior to termination, abortionists ordinarily ensure that the woman does not see the ultra sound of her unborn child, because it is well known that, if a woman sees the ultra sound of her living baby, there is a very real possibility she will not proceed with the termination.
Evidence in Australia suggests that where a woman is properly warned of the risks entailed in an abortion, she usually elects to proceed with her pregnancy. Interestingly, in one hospital in Australia where a large number of abortions are performed, but the abortionists are salaried employees deriving no monetary benefit from the abortions they perform, many of the women opt out–some when actually on the operating table.
Most women in Australia, who have their pregnancies terminated, claim that the last time they see the abortionist is immediately prior to anaesthization. The operating abortionist does not see them when they are in the recovery room, nor does he look in to see or ask how they are. There is little or no follow up to abortions, and most women never see their abortionist again. In other branches of surgery follow-up is a significant aspect of the operation, because it enables a surgeon to learn how people fare after the operation, and whether there are any adverse consequences from it. Proper and adequate follow-up plays an important part in the gradual improvement of medical science and medical techniques.
The more one learns about abortion clinics and abortionists, the picture which emerges is not of a profession in which the prime consideration is the welfare of the patient, but rather of a commercial industry with a large monetary turnover, in which those who participate resist any restraints on the industry, or anything which might reduce the consumption of the product they sell, viz, abortion.
A further and most important question is the link between abortion and breast cancer.1 To me, as a trial lawyer, the evidence of the ABC link (as it is called) is compelling. There are now 37 statistical studies going back to 1957, 28 of which demonstrate a link. Secondly, Professor Brind of Baruch College, New York, and his research team have identified biological reasons why abortion increases the risk of breast cancer, reasons which so far remain unrefuted. Thirdly, scientific experiments on rats have demonstrated that terminating their pregnancies considerably increase their risk of developing breast cancer.
Whilst countervailing surveys and arguments have attempted to discredit the statistics, some of these countervailing arguments appear quite bizarre; some border on the dishonest, and in other instances reliance is placed on theories and statistics which have already been well and truly debunked.
Interestingly the debate on the ABC link arose in U.S. Congress on 8 June 1999 in the context of an amendment to a bill funding Food and Drug Administration, which amendment sought to block the F.D.A. using any of its funds for the purpose of testing drugs (such as RU486) whose indication is the chemical induction of abortion, on the grounds that induced abortion increases the risk of breast cancer. The debate makes excellent and informative reading and a majority of members of Congress were sufficiently convinced of the link to enable this amendment to be passed.
The way in which most American and Australian abortionists conduct their practices in reality makes them extremely vulnerable to civil legal claims. Many of them are the antithesis of professional men.
From the legal perspective, this vulnerability arises in two main ways. First of all before any doctor operates, he must obtain the consent of the patient, but it must be an "informed consent". If the risks of the operation are not properly explained then any apparent consent which may have been obtained can be invalidated. In those circumstances even though the operation may be competently performed, it is, in law an assault for which damages can be obtained. As its core the common law doctrine of informed consent imposes a legal duty on the physician to inform the patient of significant facts about any proposed procedure so that the patient can make an intelligent choice. 2 The patient’s lack of vital information about a procedure renders apparent consent meaningless.
In Gouse v. Cassel (1992) the Supreme Court of Pennsylvania defined the scope of consent as necessarily requiring informed consent, and indicated that lack of informed consent was the legal equivalent to no consent.3 Although Schloendorff v. Society of N.Y. Hospital (1914)4 has since been overruled, the words of Justice Cardozo in that case that "every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages" is still respectfully quoted as correctly summarising the law on this topic.
Consequently an abortionist who does not adequately warn his patent of the many risks of a surgical termination (ordinarily no adequate warning is given) commits an assault on his patient and is liable for damages for the assault itself and for any resulting adverse physical or mental harm.
A second but closely allied line of legal attack is the alternative or additional basis of a claim for negligence against the abortionist, where there is a failure to warn a patient of a material risk which eventuates.
The law on this topic is almost precisely the same in the United States and in Australia. The patient has a right to be warned of all material risks.
In 1972 in Canterbury v. Spence 5 the District of Columbia Circuit Court determined that the logic of this right required a rejection of the "reasonable physician" in favour of a more patient-orientated approach. The medical practitioner must inform the patient of all material risks, defined as those to which "a reasonable person in what the physician knows or should know to be the patient’s position, would be likely to attach significance...in deciding whether or not to forego the proposed therapy".
In Scaria v. St. Paul Fire & Marine Insurance Co.6 the Wisconsin Supreme Court followed Canterbury and explicitly rejected the notion that the physician’s duty to disclose is necessarily limited to a "self-created custom of the profession". The Australian High Court (the equivalent of the United States Supreme Court) in Rogers v. Whitaker 7 expressed precisely the same view. In that case a risk of one in 14,000 materialised, but the surgeon was held to be negligent. In Harbeson v. Parke Davis Inc. 8 the Court indicated that if there is a body of research which suggests a particular risk even though that research is not generally accepted there may be a duty to tell the patient about that body of research.
Abortionists (as I have indicated) are in it for the money. Proper counselling in relation to an abortion and warnings concerning the many and various risks requires considerable time. This rarely, if ever, occurs.
The abortionist is in a bind. Were it to be done, many patients would opt to continue their pregnancies with resulting financial detriment to the abortionist and his clinic. This failure to counsel and warn means that most abortionists are particularly vulnerable to malpractice suits. The position was summarised by Justice Sandra O’Connor in City of Akron v. Akron Centre for Reproductive Health. 9
In 1998 in Australia we had what is believed to be the first concluded case based solely on psychiatric damage. The woman concerned (referred to in the media by the pseudonym "Ellen") claimed she received no warning that an abortion could cause psychiatric damage. She, in fact, suffered significant psychiatric injury and sued in both assault and negligence. The case never went to hearing but the fact that the abortionist and hospital concerned had settled for an undisclosed amount received wide media publicity and led to a number of other women coming forward to sue. In most instances the cases have now been settled for undisclosed amounts, but it is now known that in at least two instances the settlements were substantial.
In August 2000, I was approached by a young woman who had psychological problems following an abortion and who wanted to sue because she was not warned of the risk. Fortunately I had some personal knowledge of the abortion breast cancer link and, in the course of obtaining her history, it appeared to me she was also likely to be at significant risk of developing breast cancer as a consequence of the abortion. An opinion was obtained from New York Professor Joel Brind who confirmed that she fell into a relatively high risk category. It was then decided to sue on both bases. The fact that the Plaintiff had not developed breast cancer did not prevent her suing. Being placed at risk of developing subsequent medical problems is compensable at law.
In relation to the breast cancer risk the particulars of the negligence alleged against the doctor and the clinic were–(i) Failing to warn the Plaintiff that the termination of her pregnancy might increase the risk of her subsequently developing breast cancer; and (ii) Failing to inform the Plaintiff that there was a body of medical opinion and/or surveys that suggested there was a link between surgical termination of pregnancy and the subsequent risk of developing breast cancer.
In Australia before any case of this nature can be set down for hearing, it must first go to mediation. In this case the mediation was conducted in August 2001 and in the presentation of the Plaintiff’s claim, considerable emphasis was placed on the failure of the Defendants to warn the Plaintiff of the breast cancer risk. We formed the view that the Defendants, who were represented by a highly skilled trial lawyer, were concerned by this allegation and were not eager to litigate the issue. What we considered to be a reasonable offer of settlement was finally made by the Defendants, and the Plaintiff decided to accept it. She was, however, warned that in the future she should be very careful to check her breasts regularly, so that if breast cancer does develop it will be detected at a very early stage thereby reducing the risk of death or major surgery. This case is believed to be a "world first".
The fact that we had sued in relation to the A.B.C. risk led other Melbourne lawyers to sue on behalf of a married woman who had had an abortion and who too had not been warned of the link. They, too, obtained an opinion from Professor Brind who considered her risk was significant. When this case went to mediation in March this year, I was invited to lead the legal team acting on the woman’s behalf. Once again a satisfactory settlement was obtained. These two cases have now prompted further legal actions, which are now awaiting mediation, and, if not settled, will be litigated.
Just as the tobacco industry was, in the ‘sixties, able to produce statistics and apparently expert medical opinion denying the tobacco-lung cancer links, so too today the abortion industry is able to point to material which denies the abortion-breast cancer. Eventually some cases will inevitably be litigated. Victory for the Plaintiffs could have very far reaching consequences. Whilst Roe v. Wade may remain law in the United States for many years to come, bringing law suits for women physically or mentally harmed on the basis that there was no informed consent, and, or alternatively, on the basis of a failure to warn of the material risks, such as the A.B.C. link have great potential for success. As such cases are brought and reported by the media, not only will further litigation be stimulated, but abortion itself will increasingly be recognised as a medical hazard to be avoided for the woman concerned.
Interestingly in Eire (Ireland) where abortions are illegal and terminations rarely performed, there is the lowest rate of maternity death in the world. The success or otherwise of such cases will often depend upon the quality of the medical evidence given. We need medical practitioners who are prepared courageously to give evidence in such cases, evidence which is both expert and accurate, but the battle to ensure the public is properly informed on abortion is still there to be won.
1. See for example "Abortion and Breast Cancer" (Endeavour Forum, Nov 1999).
2. See Wisconsin Law Review Volume 1998 Number 6. Article by John Kindley.
3. 615 A 2d 331, 334 (Pa 1992)
4. Schloendorff v. Society of N.Y. Hospital 105 N.E. 92.93 (N.Y. 1914)
5. 464 F 2d 772 (D.C. Cir 1972)
6. 68 Wis 2d 1 227 N.W. 2d 647 (1975)
7. Rogers v. Whitaker 175 (Australian) Commonwealth Law Reports p.479
8. Harbeson v. Parke Davis Inc. 746 F2d 517, 524.
9. 462 US 473 (1983).
ABOUT THE AUTHOR
Charles Francis is an Australian attorney who is believed to be the first attorney to have settled a case alleging a physician failed to warn a patient of the increased risk in her case between abortion and breast cancer.