Med-mal meets Culture War: ACLU sues bishops over abortion policy

by Walter Olson on December 12, 2013

“The American Civil Liberties Union has filed a federal action against the U.S. Conference of Catholic Bishops, alleging that its ethical guidelines given to Catholic hospitals resulted in negligent care for a miscarrying woman.” The suit, in the name of a Muskegon, Mich. woman who allegedly experienced pain and suffering by not being advised at once to abort a doomed fetus, also names as defendants three individuals who have chaired a church-affiliated body by the name of Catholic Health Ministries. The suit does not however name as a defendant Mercy Health Partners, where plaintiff Tamesha Means was treated, nor does either the Bishops’ Conference nor CHM own Mercy. So what’s the legal theory? Well, the bishops issued ethical guidelines they expected Catholic-affiliated hospitals to follow, and CHM acted as Mercy’s “Catholic sponsor” vouching for its compliance with those guidelines. So maybe the theory consists of “incitement to commit malpractice.” Is it rude to point out that the law recognizes no tort of that sort? [ABA Journal, MLive, Alex Stein/Bill of Health (background on Michigan med-mal law)] See also: Seth Lipsky, N.Y. Post (“astounding” suit menaces defendants for hewing to their view of spiritual truths).

{ 7 comments }

1 marco73 12.12.13 at 8:07 am

Well, it is the Christmas season, so of course let’s sue some Roman Catholics. No chocolate Jesus or dung covered Madonna, but a simple med-mal case is all they got?
What will they save for Good Friday?

2 Mike 12.12.13 at 12:29 pm

There is a movement afoot to either drive the Catholic Church out of the charity, health care, and social services field(s), or force it to abandon its religious principles. One such attempt is being made through Obamacare’s birth control mandate. This appears to be another. If the Church does abandon these activities, one big winner will be the SEIU.
I am disappointed, but not really surprised, to see the ACLU participating in this.

3 Dwight Brown 12.12.13 at 12:57 pm

“Is it rude to point out that the law recognizes no tort of that sort?”

Is it rude to suggest that if “incitement to commit malpractice” becomes a recognized cause of action, that it be applied next to Jenny McCarthy and other opponents of vaccination?

4 gasman 12.12.13 at 2:33 pm

This must have the ACLU all torn in knots. Normally it would fight for an individual or organization’s right to make public statements of opinion on matters of their religious beliefs.
Even if there is a relationship between the bishops statements and clinical care at hospital, the reality is that the bishops do not own the hospital, or employ the physicians.
Is there even an ambulance chaser attempting to say the care was negligent through the more direct tort system between patient and physician?

5 Bumper 12.12.13 at 9:41 pm

If the events described are correct then the attending physician are guilty of malpractice. So why aren’t they being tried for same. Simple, the ACLU wants them to testify, “the devil made me do it.”

Hopefully they will still be dealt with by their state board.

6 Hugo S. Cunningham 12.16.13 at 3:46 pm

The ACLU may have been thinking of the butchery of Savita Halappanavar in Ireland.
http://en.wikipedia.org/wiki/Death_of_Savita_Halappanavar

But that can’t happen here? Think again.
The bishop of Phoenix excommunicated a doctor for saving a woman’s life
http://en.wikipedia.org/wiki/Excommunication_of_Margaret_McBride
It is a pity that the Arizona legislature did not seize the opportunity to resolve as individuals (not as a body enacting a questionable law) to “excommunicate” the bishop by inviting all decent people to shun events where he was present.

I equate the Church hierarchy’s willingness to let women die with another religious rite: human sacrifice. The belief may be sincere, but it does not merit Constitutional protection, *especially* when applied to victims without their informed consent.

7 Hugo S. Cunningham 12.16.13 at 3:53 pm

Dwight Brown is onto something.

The authorities should not try to silence anti-vaccine kooks. lest kooks use the precedent to shut down scientific scrutiny when they get the upper hand.

On the other hand, a parent whose unvaccinated child suffers death or serious injury should be able to sue an anti-vaccine kook for malpractice, if he can show that he relied on the kook’s opinion. Kooks could shield themselves from liability by making clear disclaimers on their web pages and in public appearances that they are not doctors and are not qualified to offer medical advice.

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