Court rules jury must hear abortion information case

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Court rules jury must hear abortion information case

By Tom Hester, The Star-Ledger (Newark, New Jersey), April 8, 2006

In the latest decision in a long-running court battle over abortion, a state appeals court yesterday ruled a jury should hear a South Bound Brook woman's contention that her doctor didn't give her enough information when he advised her to end her pregnancy.

Prominent anti-abortion attorney Harold Cassidy, who is representing the woman, said the decision is a landmark ruling that would allow a jury to tackle the thorniest of issues: when life begins. But the doctor's attorney and a medical malpractice expert disagreed, saying the ruling will not have a big impact on state laws on abortion.

In the case, Rosa Acuna, a 39-year-old mother of two, contends she was not given enough information by her physician, Sheldon C. Turkish, when he advised her to have an abortion because her pregnancy in 1996 was exacerbated by a kidney disorder. Acuna also is suing Obstetrical and Gynecological Group of Perth Amboy and Edison.

Acuna, who was six- to seven-weeks pregnant when she had the abortion, contends that when she asked Turkish whether she was carrying a baby, he told her, "Don't be stupid, it is just some blood."

Seven weeks later, Acuna had to be hospitalized in New Brunswick for what she was told was an incomplete abortion. According to court papers, she said she was told by nurses that Turkish "had left parts of the baby inside of her." Acuna is suing on the grounds she consented to the abortion based on "erroneous information."

The lawsuit has bounced around the state court system for nearly a decade. While the three-judge panel said a jury should determine whether Acuna was properly advised, it tossed out a wrongful death claim the woman brought. Another appeals court had done the same in an earlier opinion.

"The issue presented here is quite narrow," the three-judge panel ruled. "What medical information is material and must be disclosed by an obstetrician when advising a patient to terminate a pregnancy and what medical information is material when the patient asks if the 'baby' is already there?"

Judge Ariel A. Rodriques, writing for the court, said a jury should decide "whenever nondisclosure of particular risk information is open to debate." "Obviously, the term 'baby' meant something different to Acuna and Turkish," the decision reads. "For her, it meant an embryo or fetus; for the doctor, a human being following birth. Arguably, from Turkish's perspective, he answered correctly, and discharged his duty to his patient by indicating that there was no 'baby' there." Cassidy, Acuna's lawyer, said the ruling will allow a jury to decide whether a first-trimester abortion ends the life of a "living human being." "We will prove, that in fact, as a matter of biology and science, that the embryo and fetus at the ages we are talking about, in the first trimester, is a whole unique member of the species Homo sapiens," Cassidy said. "The doctor has a duty to disclose that fact in terms and in ways that a reasonable patient can understand. A jury will have to decide what is the nature of the fetus." John Zen Jackson, Turkish's attorney, disagreed with Cassidy's view of the decision, saying: "We are encouraged by the Appellate Division's rejection of the plaintiff's contention as to what information is required for informed consent with an abortion procedure. The court specifically rejected the assertion that a doctor had to disclose that an unborn child is in existence." Jackson said he has not yet determined whether to appeal the decision to the state Supreme Court. Abbott Brown of West Orange, who has written two respected books on New Jersey medical malpractice law, said he doesn't believe the decision is a landmark one. "From a political standpoint, in terms of the battle over abortion rights, this will not have a long-term effect," he said. "It would be difficult to show a jury that a woman who had two children and a miscarriage did not understand the status of a fetus. There is very little development at seven weeks. It is a very early stage of pregnancy." Joining Rodriques in the New Jersey decision were Judges Mary Catherine Cuff and Helen E. Hoens.

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