Metropolitan News-Enterprise


Thursday, October 17, 2019


Page 1


Court of Appeal:

Doctor Has No Duty to Tell of Availability of Abortion Out of State

Holding Comes in ‘Wrongful Life’ Case; Opinion Declares That Obligation to Advise of Alternative Treatments Only Extends to Those Which May Be Performed in California


By a MetNews Staff Writer


A doctor who examined a pregnant woman and determined that her baby might be born with congenital anomalies—but knew that California law proscribes the abortion of a viable fetus where the pregnancy does not imperil the mother—did not have a duty to advise of the availability of an abortion in another state, the Court of Appeal held yesterday.

The unpublished opinion by Justice Halim Dhanidina, of this district’s Div. Three, affirms a summary judgment granted on March 23, 2017, by then-Los Angeles Superior Court Judge Gail Ruderman Feuer (now a justice on Div. Seven) in favor of the doctor, David Miller. He was sued in a “wrongful life” suit brought by Rebecca Gutierrez on behalf of her son, Daniel C., who was born in 2012 with severe birth defects.

An expert for the plaintiff testified:

“While it may...not be possible to perform abortions in California if the fetus is viable and the pregnancy is not a risk to the mother, it certainly is permissible and is in my opinion the standard of care to advise the patient about any risk to the mother and child and to advise the patient that there are several other states where there are no restrictions prohibiting abortions after a certain point in the pregnancy.”

No Triable Issue

That testimony, Halim Dhanidina said, did not raise a triable issue of fact, explaining that a duty to advise a patient as to alternative treatments is restricted to such treatments as are “available.” He declared:

“A treatment that cannot be legally administered in California is not available within the meaning of this rule. Accordingly, a physician cannot be held liable for failing to disclose the existence of such a treatment….

“When Gutierrez saw Miller, abortion was no longer an available treatment in California….Therefore, an abortion was not an available treatment and Miller had no duty disclose it as an option to Gutierrez.”

States Belatedly Identified

Dhanidina went on to say:

“Indeed, the difficulty with determining what is available in another state is on full display here, where minor’s own expert failed to provide which states could have provided Gutierrez with an abortion at that late stage in her pregnancy. Only now, for the first time on appeal, has minor’s counsel identified states where a late term abortion would have been available. And, even then, it is not entirely clear from the laws of those states if abortion would have been available to Gutierrez. We agree with the trial court and decline to find such a duty here.”

The case is Daniel C. v. Miller, B282595.

Santa Monica attorney Martin L. Stanley represented Daniel C. and Stephen C. Fraser, Alexander M. Watson, and Daniel K. Dik of the Glendale firm of Fraser Watson & Croutch acted for Miller.

Settlement Reached

On April 16, 2019, Los Angeles Superior Court Judge Robert S. Draper approved a  $1.25 million compromise of the minor’s claim against another defendant, Dr. Kathryn Shaw. Gutierrez, when she was eight weeks pregnant, was examined by Shaw and continued to be under her care until she switched to Miller, when she was 31 weeks into her pregnancy.

Draper determined that $240,907.66 was a reasonable amount for attorney fees.

Summary judgment was also granted, at separate points, to White Memorial Hospital and Dr. Ronald Johnson. Neither was a party to the appeal decided yesterday.


Copyright 2019, Metropolitan News Company