ARTICLES

No Duty to the Fetus

WHO'S RESPONSIBLE FOR BABY'S INJURIES --
ABORTIONIST, OR MOTHER WHO TRIED TO KILL HER DAUGHTER?

By Allyson Smith

Six-year-old Victoria Givens is about to get her date in court. In a San Diego Superior Court trial set for April 30, 1999, Givens seeks medical malpractice damages against Dr. Joseph Durante and Womancare resulting from an unsuccessful attempt by Durante to perform a late-term abortion on her mother, Melisha Wise. Charging gross negligence on Durante's part, Givens seeks compensation for injuries she suffered in utero from Durante's attempt to abort her, as well as additional complications resulting from her extremely premature birth the following day.

Sheryl Young, the maternal grandmother and mother of Melisha Wise, sought and was granted guardianship of Victoria Givens on March 6, 1998, in order to initiate suit on her behalf. That same day, through her attorney, Steven Kastner of San Diego, Givens filed her initial malpractice complaint against Durante and Womancare. It charges Durante with gross negligence for his failure to "accurately and appropriately" determine Melisha Wise's stage of pregnancy and the gestational age of her fetus before beginning the abortion March 7, 1992.

On that day, Wise, then 17 years old, accompanied by her mother, went to Womancare seeking an abortion. Unbeknownst to Durante or any other Womancare employee, Wise had already received an ultrasound examination at another medical clinic, which placed her pregnancy at approximately 25 weeks. The first clinic refused to attempt a late-term abortion, so Wise went to Womancare.

According to Durante's cross-complaint, on the health history form Wise filled out at Womancare she listed 12/31/91 as the date of her last menstrual period. Based on this date, her pregnancy was calculated to be approximately eight to nine weeks along.

Givens's lawsuit claims that Durante, during his initial examination of Wise, violated standard medical practice by failing to perform both a bi-manual pelvic examination and palpation of the abdomen, "as required by pre-abortion standards of care," to help him accurately estimate Wise's stage of pregnancy.

Durante's cross-complaint states that Durante "assessed Wise's uterine size and estimated Wise's pregnancy" to be eight to nine weeks. Even though Durante had not administered either of the required manual examinations nor requested an ultrasound examination for Wise, "Under these circumstances, neither Womancare's protocol nor that of the National Abortion Foundation indicated that an ultrasound examination should be performed, and accordingly, none was during the initial examination."

Such protocols may vary from one abortion provider to another. A spokeswoman for Planned Parenthood in Mission Valley stated that Planned Parenthood performs ultrasound testing on every abortion patient, regardless of the stage of pregnancy, prior to starting an abortion.

One of Womancare's stated objectives is to provide low-cost abortions, which is why ultrasound exams are not offered there on a routine basis. But local pro-life attorney Rick Vattuone offers another possible explanation: "Sometimes ultrasounds aren't given -- especially in cases where the abortionist suspects he may encounter a late-term pregnancy -- so the mother doesn't change her mind when she sees the baby. Then it becomes much harder to convince her that 'it's just a blob of tissue.' If she changes her mind and walks, the abortionist loses a sale."

The lawsuit charges that in violating standard care practices during the initial examination, Durante grossly underestimated the stage of Wise's pregnancy; that Durante was "admittedly uncertain" about Wise's gestational stage prior to attempting the abortion; and that since he acknowledged such uncertainty, Durante should have ordered a sonogram but failed to do so, resulting in yet another violation of the standard of care. Instead he commenced a D&C abortion on Wise by inserting instruments into her uterus and draining a quantity of amniotic fluid. Shortly thereafter, when he realized that Wise was much further along in her pregnancy than he had estimated, Durante stopped the abortion and gave Wise an ultrasound exam which placed her pregnancy at 25 to 26 weeks. Refusing to complete the abortion, Durante made arrangements for Wise to be rushed by her mother to Kaiser Hospital.

At Kaiser, labor was induced immediately to "complete" Wise's abortion. Among the contents evacuated from her uterus was a tiny baby girl, who was unexpectedly very much alive. At her extremely premature birth on March 8, 1992, Victoria Givens weighed only one pound, 13 ounces and had facial lacerations stemming from Durante's abortion attempt the previous day. As a result, she was in intensive neonatal care for many months and today "bears injuries associated with grossly premature birth, including cognitive and learning deficits and facial scarring." The effects of her injuries are expected to last the rest of her life.

The original complaint stated that the normal standard of care had not been followed by Durante during Wise's abortion and that the defendants owed a duty to both Wise and her unborn fetus if it "was reasonably foreseeable that the unborn fetus would be born alive and would suffer injuries and damages as a result of defendants' failure to conform to the standard of care."

In their answer to complaint of August 17, Durante and Womancare responded that "because Durante had no duty to Wise's unborn fetus," Givens's complaint lacked sufficient facts to constitute an action for medical malpractice. They also argued that Durante's duty to Wise to perform a successful abortion would be rendered useless if a simultaneous duty were imposed to keep the fetus alive, saying, "Durante may not be properly charged with the protection of the fetus he is charged to abort." In resorting to this "lack of duty" towards Wise's fetus, Durante and Womancare attempted several times to obtain a demurrer of Givens's complaint, without success.

The defendants also charged Sheryl Young with risking injury to her granddaughter because of her implied consent in helping her daughter, Wise, procure an abortion. Similarly, they argued that Melisha Wise's attempt to trick Durante into performing an abortion contributed to her baby's damages and should require Wise to partially or fully repay any damages that may be awarded to her daughter from the defendants. Because of this, a separate conflict exists between Durante/Womancare and Melisha Wise over the extent of Wise's indemnification obligations in the event that a judgment is awarded against Durante and Womancare in favor of the six-year-old.

Durante, 72, is being represented by Dickstein and Merin, the same Sacramento law firm representing Bruce Steir. Steir is facing charges in San Bernardino County for the murder of Sharon Hamptlon, 27, who bled to death after Steir performed an abortion on her in December 1996.

Wise declined News Notes's request to give a statement for this article. The family's attorney, Steven Kastner, also declined comment, saying, "The family doesn't want to speak to the press or make this a political, two-way issue."