The American Feminist

The American Feminist, Winter 1997-1998

Abortion Malpractice: A Woman's Right to Redress

Attorney Theodore H. Amshoff, Jr., has been specializing in abortion-malpractice law since 1988. His firm, Amshoff, Donovan, and Smith has won millions of dollars in judgments and settlements for women injured by abortion providers - or, in cases resulting in death, for the women's surviving children and relatives.

Many of Amshoff's clients are referred by right-to-life organizations, ministries, and pregnancy-care centers. The physical injuries they incur range from blood poisoning and massive infections to punctured and lacerated internal organs. In some cases, the providers fail to make a careful check of the "tissue" they remove, leaving parts of the baby inside the mother to decompose. Other cases involve emotional and psychological trauma sufficient to require long-term treatment.

In December 1996, Amshoff won a judgment of $10 million against Dr. Thomas Tucker, the owner of five abortion clinics. Tucker's victim was a single mother of five children who came to one of his Alabama facilities in June 1991 seeking a second-trimester abortion. The doctor injected a cardiac medication, lanoxin, into the baby's heart and performed a dilation and extraction. The mother began to hemorrhage and to have trouble breathing, but Tucker, who was doing as many as 150 abortions a week in two different states, had to catch a plane for his next appointment. His patient died three days later of an infection and embolism caused by his failure to remove all the amniotic fluid.

At the time the judgment was rendered, Tucker had already lost his license to practice in Mississippi as a result of a different case and was under investigation for killing a baby who had been born alive during an abortion.

Amshoff spoke to FFL from his office in Louisville.

FFL:Based on your experience, do you believe women are given enough information on abortion to make an informed decision?

Amshoff: In most surgical procedures, there is extensive surgeon-patient contact prior to the actual operation. Abortion is different because there is much less contact. As a result, a lot of safeguards of the informed-consent process are missing.

In many of the clinics we have looked at, an attempt is made to provide videotape presentations or other materials to women about the risks of the procedure and possible alternatives, but the job is often delegated to non-physicians - in some cases nurses, in some cases counselors with no formal background in health care or education. In other clinics, there is an assembly-line mentality. Women have forms thrust at them and are told to "sign here" without adequate opportunity to discuss them with counselors.

FFL: In those clinics where some information is provided, how effective is it?

Amshoff: Even where there is some delivery of risk information, it's often presented as "one size fits all." Truly effective informed consent needs to analyze risk tailored to the person who's contemplating the surgery, and that means you need to look at the risks at the woman's gestational stage of pregnancy. To present a woman with statistics on morbidity and mortality based on all abortions is grossly misleading when the patient falls into the subset of abortion patients who have a far greater likelihood of serious complication. Also, a risk assessment that doesn't adequately take into account the woman's individual health background and reproductive history is deficient.

This is the problem with non-physicians and nurses presenting information, because they are not properly equipped to assess and address the risk factors that this woman may face. She may be presented with papers to sign before she's even been examined by the physician.

FFL: Are most abortion-malpractice cases the result of second-trimester abortions?

Amshoff: The great majority of abortions in the US take place in the first trimester. Statistically, it's true that a far higher percentage of second-trimester abortions result in serious complications, but even though the complication rate is less for first-trimester abortions, there are so many that there are still a larger number of injured women.

Surgical technique for abortions varies significantly based on gestational stage. In the second trimester, you're dealing with a much greater amount of tissue. You're dealing with bones that are much harder. The fetal skeletal system becomes more rigid as pregnancy advances. If the surgeon fails to make a correct assessment of gestational stage, he may use an inappropriate technique, resulting in complications.

The most serious injuries in our practice all involved second-trimester procedures, but we have seen serious injuries from first-trimester procedures, including perforated uteruses resulting in infections and complications necessitating hysterectomies.

FFL: Do you see abortion malpractice as a moral as well as a legal issue?

Amshoff: We operate in a legal system in which abortion is legal. Abortion malpractice cases are successfully pursued based on legal principles of deviation from accepted standards of care. If every abortion was safe, my firm would not have the caseload we have.

This is one of the great contributions of our legal system: it provides for accountability. Yanking an abortion provider's license may protect other women in the future but doesn't bring about any justice for those injured in the past. The tort system is the method by which we build accountability from negligent providers to past victims.

Reprinted from The American Feminist, Winter 1997-1998