Doctor Sued for Abortion Failure : Wrongful-Birth Suit Claims Woman Had Child Due to Medical Negligence

When Lourdes Palacio got pregnant back in the winter of 1986, she was poor, unmarried and living at home with her family. Concluding she was ill-equipped and unprepared to handle the responsibilities of motherhood, the young Mexican woman steeled her nerves and underwent an abortion at a San Diego family planning clinic.

At least she thought she underwent an abortion.

In fact, while visiting another doctor several months later because of myriad stubborn medical problems, Palacio received a rude shock: her physician said she would be delivering a baby in about two months.

The child arrived, as predicted, in July. And now the baby is at the heart of an unusual lawsuit filed by Palacio against the doctor who allegedly botched the abortion and the clinic where the procedure took place.

‘Wrongful Birth’ Suit

Filed last month in San Diego Superior Court, the “wrongful birth” lawsuit charges Dr. Oscar Tan with medical negligence and breach of contract for not preventing the birth. The suit also names as a defendant the Family Planning Associates Medical Group, on Alvarado Road, where Palacio went for the surgical procedure.

In addition to seeking compensation for medical expenses, lost wages and earning capacity and the physical and emotional trauma of delivering an unwanted child, Palacio has asked the court to award her damages for the costs of raising the baby, now a healthy toddler.

“For a variety of social and economic reasons, Miss Palacio elected to have an abortion and contracted with the doctor to terminate the pregnancy,” said Jorge Gonzalez, a National City attorney representing Palacio. “As far as she knew, the abortion was a success. But when she found out it was not, it was too late. She was 32 or 33 weeks into her term and she had to go through with the birth.”

Palacio, a secretary who now lives in Tijuana, could not be reached for comment on her case.

Tan, now listed in private practice on Camino del Rio South, did not return telephone calls from The Times. A spokesman at the Family Planning Associates Medical Group’s headquarters in Los Angeles referred a reporter to the clinic’s attorney, Vern Tjarks, who also did not respond to phone messages.

So far, neither Tan nor the clinic has filed replies to the allegations in Superior Court.

The San Diego lawsuit is one of a rising number of so-called “wrongful birth” or “wrongful conception” actions being filed in courts throughout this country. Most often, these complex cases are brought by parents who allege that if not for medical negligence, their child would either not have been conceived or would not have been born.

The lawsuits generally involve handicapped children, but claims on behalf of healthy babies have been brought successfully as well. The actions can result from failed sterilizations or unsuccessful abortions.

Reasons Behind S.D. Suit

In the San Diego case, Palacio cites two causes of action, or reasons for bringing a suit against Tan and the family planning clinic. She charges first that the birth of her child was caused by medical negligence--the alleged failure of Tan to successfully abort the fetus--and secondly that such failure constitutes a breach of contract.

Gonzalez maintains the contract issue is clear: Palacio entered into an agreement with the physician and the clinic, paying money for the procedure, and the opposing parties failed to live up to their end of the bargain.

“It’s traditional contract principles,” Gonzalez said. “She contracted to have the abortion performed, she paid for it, she relied on it,” and Tan failed to fulfill terms of the agreement.

The medical negligence claim is also clear, Gonzalez argues. In documents on file at Superior Court, the attorney alleges that Tan “lacked the necessary knowledge and skill to properly care” for Palacio’s condition and was “negligent and unskillful” in conducting the abortion.

“After the procedure, Miss Palacio was led to believe by the personnel at the Family Planning Associates Medical Group that she was no longer pregnant,” Gonzalez said. “However, Miss Palacio was in fact still pregnant. She did not discover this fact until some time later, when it was too late to have a safe abortion. Therefore, Miss Palacio was forced to go through with the pregnancy.”

‘Ostracized by Family’

Gonzalez said the birth has caused Palacio to be “ostracized by her family,” which he described as “conservative,” and has forced her to move out of the relative’s home where she had been living.

“She receives no support to assist her in raising the child, and she and her child are enduring the trials and tribulations of having a child out of wedlock,” Gonzalez said.

In filing the wrongful birth action, Gonzalez said he is relying on two previous California cases with circumstances similar to those that befell his client. In one of the cases, a woman who underwent a tubal ligation and gave birth to a healthy baby 20 months later sued Huntington Memorial Hospital in Pasadena, alleging medical malpractice. The parents were awarded $101,000 in July, but the verdict has been contested.

The second related case, Gonzalez said, resulted in a 1976 opinion by a federal appeals court that “the mere fact a child is born healthy does not preclude the mother from recovering the usual damages” for medical malpractice.

A third case with facts that mirror almost exactly those in the Palacio lawsuit unfolded right here in San Diego. In 1979, Adora and Elisio Bautista sued two San Diego physicians for the wrongful birth of their son, who was born seven months after an attempted abortion and tubal ligation.

The Bautistas also alleged medical negligence and sought $4 million in damages, including the costs of raising their child. The case was ultimately settled out of court in mid-1983. Terms of the settlement were not disclosed.