A British Columbia court on December 4, 1990, awarded $900,000 in a botched abortion case. The money, which is to be added to at a later date, goes to Jody Cherry, a B.C. woman and her eight-year-old daughter, Elizabeth, who survived the abortion. Elizabeth was born with severe mental and physical handicaps as a result of the abortion.
In 1982, Jody Cherry, thirty years old and single, became pregnant and arranged to have an abortion at Lady Minto Hospital on Saltspring Island. Following the abortion, performed when the unborn child was an estimated ten-and-a-half weeks, Mrs. Cherry suffered extensive bleeding and cramps. When she returned to be examined by the abortionist, Dr. Hugh Borsman, she was told that her problem was probably an uterine inflammation which would go away by itself.
Some six weeks later Mrs. Cherry was diagnosed by another doctor who discovered that she was till pregnant. By the time her doctors confirmed the diagnosis, Mrs. Cherry’s child was more than 20 weeks old.
Mrs. Cherry told the court that although she was initially upset to find out she was still pregnant, eventually she felt good about it and decided she wanted to have the child. She ascribed this change of feeling to the normal hormonal changes which take place during pregnancy.
The baby, Elizabeth Roseanne, was born January 20, 1983, eight weeks premature. Her hips, her left knee and her elbows were all locked into unnatural positions. She also suffered from compression of the joints.
Elizabeth had severe inflammation of the bowel and colon, causing her intestine to rupture and resulting in frequent diarrhea and permanent incontinence. As a result, Elizabeth will have to wear diapers all her life. She has motor disfunction in three limbs, making her a “triplegic.” Her left limbs are significantly shorter than her right, with partial paralysis on one side. Elizabeth did not crawl until she was three years old and will never walk unaided. According to Mr. Justice Skipp, she will spend most of her time in a wheel chair.
Elizabeth suffered brain damage after her birth. She is mentally retarded and is not expected to develop beyond the level of a normal nine or ten year old. She has cerebral palsy and a number of disfiguring features. Her life expectancy is between 50 and 60 years.
All of this damage, the judge concluded, was due to the botched abortion. In that procedure – a suction abortion – none of the unborn child, but much of the placenta was removed. This resulted in diminished amniotic fluid, a reduced blood supply and compression in the uterus. According to Judge Skipp, the unborn baby was essentially “squashed” in the womb.
A month before the birth, Mrs. Cherry married Elizabeth’s father. In the first year of her life Elizabeth had 100 visits to various doctors. The lawsuit was brought in the name of both the mother and child.
The judge’s award consisted of $75,000 TO Elizabeth’s mother for pain and suffering, including the burden of caring for Elizabeth, and $200,000 in lost income due to the fact that care of Elizabeth will conflict with holding a full-time job. The award to Elizabeth of over $600,000 included a sum for loss of income, and $160,000 for pain and suffering. This amount will grow much larger. The abortionist is also required to pay the costs of all future care for Elizabeth; this amount will be settled by the court at a later date.
Duty of care
The court held the abortionist liable to Elizabeth on the basis that he owned her the duty of care. Dr. Borsman, now deceased, should have been aware that a botched abortion might involve damage to the unborn child.
Judge Skipp ruled that this did not conflict with the right of the doctor to kill the child. The child only had rights, the court ruled, when she was born. Once born, however, Elizabeth had the right to claim for damages caused to her before birth.
The death of the abortionist will not interfere with the family’s ability to collect their award as such funds are paid by the malpractice insurance which doctors are required to carry.