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Evidence that a woman had a previous abortion and that she considered terminating another pregnancy that ultimately ended in a stillbirth should not have been admitted at trial in a medical malpractice case, a Pennsylvania Superior Court has ruled in a memorandum opinion. The court in Bynum v. Thomas Jefferson University said because some members of the community have “extreme negative reactions” toward issues surrounding abortion, the evidence’s prejudicial power outweighed its probative value. “In the case at hand, the trial court determined that the abortion testimony was relevant to the jury’s determination of the amount of damages to award,” the court wrote. “We disagree.” “The trial court based its relevancy conclusion on mere speculation that a prior abortion would effect the suffering felt after the loss of an entirely separate pregnancy. We discern no correlation between an abortion four years prior and the degree of emotional distress parents would feel upon hearing that their full-term baby had died in utero after subsequent delivery.” The decision overturns a ruling Philadelphia Court of Common Pleas Judge Mark I. Bernstein made on the trial court level. The appeals court remanded the case for a new trial. The Superior Court panel in Pittsburgh consisted of Judges Stephen A. McEwen, Justin M. Johnson and Michael T. Joyce. McEwen concurred in the result only, and Joyce filed a separate concurring and dissenting opinion. Although unsigned, Johnson therefore wrote the majority decision. In his concurring and dissenting opinion, Joyce took issue with the lead opinion’s reasoning on the admission of abortion evidence. “Ms. [Diane] Bynum’s contemplation of abortion indicates the value she placed on the fetus; the value placed on the fetus impacts on how emotionally distressed, if at all, Ms. Bynum would be upon losing her fetus,” Joyce wrote. “If Ms. Bynum placed so little value on the fetus that she contemplated aborting the fetus, then her level of emotional distress would not be the same as that of a woman who valued the fetus all through the pregnancy and never contemplated an abortion at any stage.” Bynum’s due date was Dec. 23, 1996. On Dec. 20, Bynum met with Dr. Phillip Hirshman for a prenatal visit. Hirshman testified that Bynum did not complain of decreased fetal movement at that time. Hirshman said there was a fetal heartbeat and fetal motion during that exam. But on Dec. 23, Bynum went to the hospital, saying she had not felt any fetal movement at all that morning. Two residents performed an ultrasound and found no fetal motion or heart tones. They determined that the fetus was dead. Bynum and her husband sued several doctors in two cases, which were consolidated. The consolidated case went to trial solely against Hirshman and Thomas Jefferson University Hospital. With regard to Hirshman, the plaintiffs claimed negligence for failure to determine that Bynum’s fetus had died in utero. The complaint did not allege that any malpractice caused the death, but rather sought recovery for emotional distress for learning of the stillbirth three days after it happened. The only allegation against Jefferson was that the hospital was vicariously liable for Hirshman’s actions. The case was originally tried before Judge Victor DiNubile and ended in a hung jury. On retrial before Bernstein, the three-day trial ended in a defense verdict. Bernstein denied the plaintiffs’ request for a new trial, and the plaintiffs appealed. The main focus of Bynum’s appeal was the admission of abortion evidence. Bynum and her husband argued that the admission of evidence of Bynum’s prior abortion and her contemplated abortion were not relevant to the issues in the case or the damages. The trial court said the couple had placed the records containing the abortion information at issue because they made allegations of “alteration or inaccuracy.” Bynum argued that even if the records were relevant, the “issue of abortion is inherently prejudicial and should only be allowed when it directly impacts the issue in the case.” Johnson said in cases that admitted abortion evidence, the evidence was essential to the case, because the cases specifically involved abortions. The court said once Bynum and her husband agreed to have the baby, the contemplation was irrelevant to the fact pattern of the medical malpractice case. Johnson said the admission of such evidence was prejudicial. “Currently this nation is polarized on the issue of abortion with some members of our community exhibiting extreme negative reactions to women who have abortions or to persons who advocate for a woman’s right to choose an abortion,” the court wrote. “We conclude in view of this circumstance that the references to abortions may likely have fixed ‘decisions which [had] an improper basis in the minds of the jury.’” “Although we recognize that the testimony was not lengthy, we conclude that its inclusion was demonstrably prejudicial.” Bynum presented several other issues, several of which the court dismissed as waived. One issue the court examined, however, was whether the trial court erred by removing the hospital’s name from jury interrogatories. The trial court precluded the name on the interrogatories because the court determined that Bynum and her husband had not presented any evidence of the hospital’s direct liability. On this issue, Johnson concluded that the trial court did not abuse its discretion. Joyce said he wrote separately because of his disagreement with the majority’s ruling on the issue of the admission of the abortion evidence. He said he believed the contemplation of abortion was very relevant to the damages portion of the case. “Since appellants are seeking damages for emotional distress for the stillbirth of the fetus, their emotional disposition towards the fetus as well as the value they placed on the fetus at every stage of the fetal development, is highly relevant,” Joyce wrote. Joyce agreed that the evidence of Bynum’s consideration of abortion was prejudicial. He said, however, he believed the probative value of the evidence outweighed the prejudicial effect. Joyce said he couldn’t conclude whether the admission of the evidence was erroneous because the trial was not bifurcated. “In my view, this is a case that loudly cries out for bifurcation between the liability phase and the damages phase,” Joyce wrote. He said he would remand for a new trial with instructions that the trial be bifurcated and allow the abortion information in the damages phase of the trial. Mark S. Keenheel of the Maplewood Mall Law Center in Philadelphia represented Bynum. Robert M. Britton of Post & Schell and Joan E. Danielson Plump of McKissock & Hoffman represented Thomas Jefferson. Britton also represented Hirshman.

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