Holland Phillips Sep. 16, 2013, 3:32pm

NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit Court has reversed and vacated portions of a lower court decision that disallowed medical malpractice lawsuits in the cases of abortion finding it “unduly burdensome of a woman’s right to have a pre-viability abortion and unconstitutionally vague.”

Plaintiffs in the case are Hope Medical Group for Women D.B., the medical director of Hope Medical and K. P., who performed abortions at Hope Medical from 2005 to 2007.

The defendants are officers of the Louisiana Patient’s Compensation Fund Oversight Board.

The appeals court heard the case involving a March 2012 district court judgment that determined Louisiana Act 825 of 1997 was unconstitutional and thereby granted a permanent injunction against the defendants from relying on the Act.

The plaintiff providers sought coverage from the Louisiana Patient’s Compensation Fund for a medical negligence suit filed against them in 2007. The board maintains that it will not cover the costs of the suit because the Medical Malpractice Act of 1975 “is not applicable to allegations involving an abortion."

Plaintiffs claimed that a subsection of the Act pertaining to abortion is unconstitutionally vague. They argued that it lacks a rational basis by violating the Equal Protection Clause of the Fourteenth Amendment because it imposes “strict civil liability [on abortion providers] for their performance of legal medical procedures and it excludes abortion providers, but no other physicians, from the protections of the [Malpractice Act].” Furthermore, the plaintiffs claimed that it places an undue burden of financial cost on patients, whose access to abortion services would be limited as a result of the Act.

The board parties, who launched the appeal, argued that the plaintiffs had no standing in their claims, saying they are moot or otherwise barred by the Eleventh Amendment.

The appeals court found that the providers lacked standing in their challenge to the subsection because the defendants do not enforce their actions and “relief directed to the Board Parties will not redress the Providers’ injury.”

The court also found that the proceedings are not moot and that the plaintiffs have merit to challenge the law.

Decisions on related cases have volleyed back and forth between state court, the Fifth Circuit and district court since 2007, when a patient who received a first-trimester surgical abortion asked for a panel to review claims of medical negligence. The board denied the request due to the disqualification of K. P. and Hope Medical. D. B. was considered qualified at this time. No record was made as to whether D. B. was named in the suit after it was resolved that D. B. was not, in fact, qualified for coverage by the Fund.

The Act at issue, Act 825, declares that “[a]ny person who performs an abortion is liable to the mother of the unborn child for any damage occasioned or precipitated by the abortion” even when the mother signs a consent form as to the risks of the procedure, and it further declares that liability limitations provided in the Medical Malpractice Act are not applicable for abortion providers. Act 825 was scheduled to take effect in 1997.

A district court granted a temporary restraining order, preventing the reification of the act in Okpalobi v. Foster. Louisiana appealed. A panel of the Fifth Circuit Court of Appeals affirmed the restraining order in 1999. In a 2001 en banc rehearing of the case, seven out of 14 judges concluded that the suit, which named the defendants as Louisiana Governor and Louisiana Attorney General, was barred under the Eleventh Amendment.

In 2010, a panel of the Fifth Circuit reversed and remanded K. P. v. Leblanc with a notice that invoking the "Ex Parte Young" exception to the Eleventh Amendment necessitates that the plaintiff demonstrate that the officers under suit are involved in enforcing the act. Enforcement was proven: “the Board enforces the Act ‘by applying its prohibitions.” The panel also found that the claim was not moot. In September 2010, the board completed a medical review of the patient’s claims as a “voluntary cessation.”

In 2011, the case was reassigned to another district judge. The district court voided the act for vagueness, its undue burden, and for want of rational basis as the act “if upheld, would ‘significantly reduce the number of abortion providers in Louisiana.”

Circuit judges who ruled on the case were Patrick Higginbotham, Edith Brown Clement and Catharina Haynes.

Case no. 12-30456.

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