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A New Jersey state appeals court on Oct. 29 reinstated a malpractice claim over an allegedly botched abortion, giving the plaintiff a chance to prove that her doctor deprived her of a basis for informed consent by failing to tell her the fetus was a “complete” being. The plaintiff has no wrongful-death claim but can pursue damages for “emotional distress and mental suffering arising from the loss of the fetus,” the court said in Acuna v. Turkish, A-2209-01. Harold Cassidy, the lawyer for plaintiff Rosa Acuna, says he is unaware of any other case that has recognized an identical claim. The judges partially reversed summary judgment below. Superior Court Judge Douglas Hague in Middlesex County had tossed out both the wrongful-death and informed consent claims, reasoning that the fetus was not “a constitutional person” under Roe v. Wade, 410 U.S. 113 (1973). Judges James Havey, Ariel Rodriguez and Edith Payne found Roe not dispositive of the informed consent claim, which did not involve “a government’s attempt to limit a woman’s privacy right to terminate a pregnancy.” Instead, the case was about “a woman who claims severe emotional distress caused by medical advice resulting in her grudging consent to terminate a pregnancy, purportedly given because of defendant’s failure to advise her of the material consequences of the procedure,” wrote Havey for the panel. That claim was “well-founded under New Jersey law,” the panel found. It analogized it to an emotional distress claim for stillbirth, first recognized in Giardina v. Bennett, 111 N.J. 412 (1988), which is also based on “recognition of the intimate familial relationship between the claimant and the immediate victim … and the foreseeability of parental suffering.” Giardina also held that New Jersey’s Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., does not allow recovery for wrongful death of an infant before birth. Rejecting a defense argument that the death of a fetus from an abortion should not be treated like a stillbirth because there is no expectation of the birth of a healthy child, the panel found “no logical basis to distinguish the cases simply because the tortious conduct of the defendants differed, or … the fetus in this case did not survive full term.” The appeals court also saw the claim as a “logical corollary” to the recognized claim for wrongful birth because both involve the “distinctively personal interest” whether or not to bear a child. Acknowledging that the case raises “difficult questions because moral, philosophical or religious beliefs may be implicated in a woman’s choice,” the appeals court, with the parties’ agreement, declined to define the doctor’s duty of care or what risks or consequences would be “material” to a “prudent” patient. Determination of those “perplexing issues” should await a complete factual record, the court held. Rosa Acuna contends that obstetrician-gynecologist Sheldon Turkish failed to tell her that her 7- to 8-eight-week-old fetus was “a complete, separate, unique and irreplaceable human being” and thus deprived her of information necessary to make an informed decision on whether to have an abortion. Acuna contends that she asked Turkish, of the defendant Obstetrical and Gynecological Group of Perth Amboy-Edison, if there was a baby inside her. “It’s only blood,” he responded, according to Acuna. Turkish recommended Acuna terminate her pregnancy because of harm to her kidneys. He performed a vacuum aspiration on April 9, 1996, but Acuna continued to bleed heavily and had to go to a hospital almost four weeks later for a second procedure, a dilation and curettage, to complete the process. Acuna alleges she suffered from post-traumatic stress disorder, obsessive-compulsive disorder, major clinical depression and psychosexual dysfunction as a result. Cassidy, a partner with Holmdel, N.J.’s Cassidy Messina & Laffey, says he plans to call expert witnesses to help establish a scientific and medical consensus that a first trimester abortion ends the life of a human being and that Turkish should have so informed Acuna. Cassidy also challenged the Wrongful Death Act’s constitutionality, arguing that strict scrutiny should apply to what he called a mother’s fundamental interest in her relationship with her child and that it is irrational to distinguish between born and unborn children because the mothers have suffered a comparable loss. But the judges found no fundamental right is implicated because the law does not classify mothers, focus on any special familial relationship nor affect a mother’s relationship with her unborn child. Cassidy has raised the equal protection challenge in federal court as well, in Santa Marie v. Whitman. He lost below and argued the appeal before the 3rd U.S. Circuit Court of Appeals in June. The appeal is pending. John Zen Jackson, a partner with Kalison, McBride, Jackson & Murphy in Liberty Corner, N.J., who represents Turkish, did not return a call requesting comment. Abortion rights attorney Talcott Camp, of the American Civil Liberties Union’s Reproductive Freedom Project, says the case is about harassing and discouraging doctors from performing abortions.

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