Anti-Abortion Practices at Catholic Hospitals as Medical Malpractice

By Alex Stein

The New York Times has recently reported about a suit filed by ACLU against the United States Conference of Catholic Bishops for requiring Catholic hospitals to avoid abortion “even when doing so places a woman’s health or life at risk.” The suit unfolds a disturbing story about an 18-week pregnant woman who rushed to the Mercy Health Partners in Muskegon, Michigan – the only one in her county – after breaking water. According to the suit, the plaintiff’s pregnancy was not viable but posed significant risks to her health. Instead of inducing labor or surgically removing the fetus to reduce the plaintiff’s chances of infection, the doctors at Mercy Health sent her home. The doctors also did not tell the plaintiff that her pregnancy is not viable and that it poses risk to her health. The plaintiff returned to the hospital next morning and was sent home again (!!) despite her bleeding and pain. On her third visit to the hospital – with severe pain and fever – the plaintiff miscarried and her fetus died shortly thereafter.

Described by the NYT as opening “a new front in the clash over religious rights and medical care,” the suit was filed in federal court in Michigan.

Michigan law, however, does not offer the plaintiff much because:

(1) reportedly, she sustained no permanent injuries (and her luck as a patient is also her doctors’ luck);

(2) her avoidable pain and suffering did not last for long and do not appear to be extreme.

(3) she will have hard time proving that a timely referral to another hospital would have minimized her pain and suffering;

(4) she cannot recover for lost chances to achieve a better medical outcome, as Michigan statute, Mich. Comp. Laws Ann. § 600.2912a(2), precludes such suits; and

(5) under Michigan’s “locality rule,” Mich. Comp. Laws Ann. § 600.2912a(1)(a), the plaintiff must take the rural hospital she went to for treatment as she finds it.

It seems therefore that the plaintiff’s best chance is to proceed on informed-consent-violation grounds and claim compensation for her emotional and dignitary harm, as well as punitive damages. Alas, the plaintiff would face obstacles proving her emotional harm that is also capped together with pain-and-suffering damages: presently, at $433,400. Mich. Comp. Laws Ann. § 600.1483, as adjusted to the consumer price index here.  Also: a few states that recognize dignitary harm as actionable do not presently include Michigan.

As for punitive damages, winning them in a medical malpractice case is an uphill battle. But because this case is special, the plaintiff and ACLU will probably do well to wage this battle.

This entry was posted in Abortion, Alex Stein and tagged , , , , , , , , , by Alex Stein. Bookmark the permalink.

About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice,, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.