A Pennsylvania woman who became pregnant and had an abortion despite having had a sterilization procedure may move her case forward, the state Superior Court has ruled, refusing to limit emotional distress damages to a six-week postnatal period, as the trial court had.

According to the opinion in Catlin v. Hamburg, the doctor who performed the sterilization procedure recognized the Filshie clip used for surgical contraception was failing on the right fallopian tube and opted — for that side only — to perform another type of procedure in which part of the fallopian tube is removed.

The woman, Natalie Catlin, ended up becoming pregnant, but terminated her pregnancy because it was clear the baby was suffering congenital abnormalities, which were unrelated to the sterilization treatment, according to her attorneys. After the abortion, Catlin had excessive bleeding and anemia and, after exhausting other medical treatments, ended up having a total hysterectomy in 2001.

In that year, she brought a medical malpractice action against Dr. Marc Hamburg, the doctor who performed the sterilization, and the hospital where it was performed.

In a unanimous decision, a three-judge Superior Court panel also said Catlin would be allowed to put on an expert who has opined that, because the doctor recognized one surgical method was failing for the right fallopian tube and went another route, he should have done the same thing to the left side.

By not doing so, the expert has opined, Hamburg breached the standard of care.

The decision reverses a Lawrence County judge’s grant of summary judgment in favor of Hamburg. The lower court had agreed with Hamburg that Catlin should not be able to submit the opinion of her medical expert because he cited no medical literature or treatise in his expert report.

But the Superior Court, led by Judge Judith Ference Olson, disagreed.

The decision clears the way for Catlin to use the expert as well as to attempt to recover damages beyond the prenatal and six-week postnatal periods that her opponent had argued the court was bound to impose.

A jury would decide the case along the standards of traditional medical malpractice actions, in which there are no limits on non-economic damages.

The panel, which also included Judge David N. Wecht and Senior Judge William H. Platt, said it was an error for the trial court to equate the abortion with a birth and then, in turn, limit damages to a six-week period after the abortion.

A line of Pennsylvania cases dating back to Mason v. Western Pennsylvania Hospital in 1982 dealt with instances where the negligently performed sterilization led to pregnancy, but nonetheless healthy babies.

In one of the cases, Butler v. Rolling Hills, the Superior Court applied the "benefit rule" in deciding the emotional distress of an unwanted child was "set off" by the benefits of parenthood. The court then limited damages to prenatal, delivery and postnatal periods.

But what happens, in terms of damages, when the mother becomes pregnant with a child and opts to have an abortion in the face of birth defects?

Following Catlin, it appears a jury may be left to decide.

"The facts of this case are readily distinguishable from Mason and its progeny," Olson said in her 19-page opinion. "Although pregnancies occurred in all of the previously cited cases, as well as the case presently before us, despite prior sterilization and contraceptive procedures, all of the women in the previously cited cases carried infants to term and ultimately gave birth."

"Pennsylvania appellate courts determined that in such cases, only prenatal through postnatal pain and suffering was compensable because the benefits of raising a child outweigh an unwanted birth," she went on. "In this case, however, [the plaintiff] opted to abort the fetus and, accordingly, there was no birth."

The public policy utilized in Mason — "the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child" — therefore did not apply, Olson said.

Olson also noted the Mason court limited damages to postnatal pain and suffering and "postnatal," as defined by Merriam Webster’s Collegiate Dictionary, is defined as "’occurring or being after birth.’"

And because there was no birth in the instant case, Olson said the case was more akin to traditional medical malpractice cases.

In awarding non-economic damages in such a case, the factfinder considers age, severity of injuries, whether the injuries are permanent, the duration and nature of medical treatment, how long and to what extent the plaintiff suffered physical pain and mental anguish, and the plaintiff’s condition before the injuries.

"In this case, should there be a determination that Dr. Hamburg’s negligence was the proximate cause of [Catlin's] injuries, the factfinder must determine damages based upon the aforementioned factors," Olson said. "This is especially so herein where [Catlin] alleges that she underwent ‘subsequent invasive procedures, hospitalization to deal with excessive vaginal bleeding, and a hysterectomy.’"

The panel also unanimously agreed that the opinion of Bruce L. Halbridge, Catlin’s medical expert, should be allowed to reach trial.

Halbridge has opined that when Hamburg opted to perform a Pomeroy procedure on the right fallopian tube because the Filshie clip was sliding, he should have opted to do so on the other tube, as well.

Halbridge, a board-certified obstetrician gynecologist, pointed to the standard of care that a doctor should perform the more secure and safer surgical procedure when the first attempted method is seen to fail and there exists a secondary option to accomplish the same goal.

Hamburg filed a motion in limine to strike the report, saying there was no medical or scientific reason to believe the Filshie clip on the left tube had failed or that the ovum was fertilized from the left tube.

Hamburg argued Halbridge’s expert opinion was based on supposition, lacked foundation and was speculative.

The court denied that motion.

However, the plaintiff then deposed the doctor who performed her hysterectomy, who testified she found a Filshie clip "free floating in the surgical field" during the procedure. The doctor also "easily" removed the other clip, the opinion noted. But because the uterus had been "manipulated" after it was removed, there was no way of telling whether the attached clip had been from the left or right fallopian tube.

Halbridge subsequently filed another expert report, saying no properly secured Filshie clip should be "easily excised" and concluding therefore that neither fallopian tube was completely occluded, as they should have been.

Hamburg, on the day of trial, asked the court to reconsider the motion in limine and, this time, the trial court granted it.

According to the opinion, the lower court decided the hysterectomy doctor’s testimony indicated the doctor did not know which Filshie clip was floating and which had still been fastened, making Halbridge’s report, which relied on that testimony, speculative.

The court struck the report and precluded Halbridge’s testimony at trial. Further, the court concluded that there was no medical literature supporting the notion that Hamburg breached the standard of care by not doing a Pomeroy procedure on the left fallopian tube.

With no expert witness, the trial court concluded that Catlin could not prove causation or breach of duty in her negligence claims. The court granted Hamburg’s motion for summary judgment.

The panel found this to be in error.

Halbridge had opined that Hamburg should have performed the Pomerory on both sides, Olson said. But the hysterectomy doctor’s testimony that she could not identify the positions of the Filshie clip during the operation did not change that opinion, Olson added.

"Dr. Halbridge expressed his opinion that Dr. Hamburg deviated from the standard of care within a reasonable degree of medical certainty," Olson said. "It matters not whether Dr. Zyczynski [the hysterectomy doctor] was able to determine, following [Catlin's] hysterectomy, whether the Filshie clip was attached to the left or the right fallopian tube."

Hamburg’s attorney, Judith Ann Moses of Cipriani & Werner in Pittsburgh, was not available for comment.

John A. Caputo and Christopher S. Hallock of the Law Offices of John A. Caputo represent Catlin.

Hallock noted that the rationale in the post-sterilization pregnancy cases in which the court put a limit on damages revolved a set of facts where the fetus was brought to term.

"This was different factually in a very big way," Hallock said.

Caputo noted that although the sterilization was "clearly not tied" to the deformities, the baby was still in a position of being "hopelessly deformed."

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 16-page opinion in Catlin v. Hamburg, PICS No. 12-2074, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •