Metropolitan News-Enterprise


Friday, November 9, 2007


Page 1


C.A.: Doctors Need Not Advise of Abortion When Fetus Viable


By STEVEN M. ELLIS, Staff Writer


A doctor need not advise a patient of her right to an abortion when there is no evidence of a significant fetal anomaly or a threat to the mother’s health, the Fourth District Court of Appeal held in a decision published yesterday.

Affirming the decision of San Bernardino Superior Court Judge Barry L. Plotkin, Div. Two ruled that Dr. Robert Lopez, an obstetrician/gynecologist, had no duty to advise his patient Janet Munguia of her right to abort one or both of her twin daughters because no evidence suggested problems with the pregnancy or the likelihood of a genetic defect.

As a result, Munguia’s daughters could not maintain a wrongful life action against Lopez after being born prematurely with cerebral palsy, the court held.

Wrongful Life

The plaintiffs had asserted two causes of action each against Lopez for professional negligence and wrongful life, alleging that they had developed cerebral palsy as a result of Lopez’s actions.  They argued that Lopez violated his standard of care by not advising Munguia of her right to end the pregnancy.

Lopez disagreed, arguing that the plaintiffs developed cerebral palsy as a result of their premature birth.

Under California law, an infant may bring a wrongful life claim alleging that birth would not have occurred if the defendant had performed his job properly.  A form of medical malpractice, wrongful life claims require the plaintiff to establish, at a minimum, that the defendant violated a duty of care that other members of the profession commonly possess and exercise. 

Such claims are usually brought by a plaintiff suffering from a genetic defect who seeks special damages for ongoing care, and they require that the plaintiff show that the defendant failed to diagnose and warn parents of a probability that the infant would be born with a hereditary ailment or disability, and the infant was, in fact, born with that ailment.

On appeal, the court affirmed Plotkin’s grant of summary judgment for Lopez, holding that the pregnancy had progressed in a normal fashion without any evidence of a potential complication, and that no evidence had been present of any significant fetal anomaly or endangerment of Munguia’s life by continuing the pregnancy.

Because the plaintiffs failed to demonstrate such evidence, Justice Barton C. Gaut wrote, Lopez did not owe Munguia a duty to advise her of the right to an abortion, and his failure to advise of such right did not constitute professional negligence. 

Fetuses Viable

Gaut also noted that, under Health and Safety Code Sec. 123468, Lopez could not properly have advised Munguia of her right to an abortion when she started to experience complications near the end of the pregnancy because the plaintiffs were viable fetuses at that time.

Lopez’s attorney Tom M. Allen said that he was pleased that the court had published the opinion, and that his client has sought publication in order to give doctors guidance on their duty to advise patients of a right to an abortion.

The decision was originally filed on Oct. 18 as an unpublished opinion.

Plaintiffs’ attorney Nathaniel J. Friedman called the opinion a total misstatement of the law, but said his clients would not seek review in the Supreme Court.

Gaut was joined in his opinion by Justices Thomas E. Hollenhorst and Douglas P. Miller.

The case is Barragan v. Lopez, E042080.


Copyright 2007, Metropolitan News Company