Legal Eagle Eye Newsletter for the Nursing Profession (6)5 May 98


Quick Summary: Despite the mother’s own negative HIV test, a nurse at the clinic advised the mother there still was a fifty-fifty chance her fetus was HIV-positive because the father was HIV-positive, according to the record before the Supreme Court of Montana.

   The clinic nurse went on to advise the mother that if the fetus was HIV-positive the mother herself could contract HIV during her pregnancy or in delivery and die from AIDS. The bottom line for the mother, as told to her by the clinic nurse, was that the mother herself was going to die, more likely than not, within the next few years.

   The mother was led to believe her only realistic option was an immediate abortion. When she came in for the abortion, she told a counselor at the clinic the reason was that the father was HIV-positive. The counselor would not let the procedure go forward, however, without proof from the mother that she herself was HIV-negative. The mother got her written HIV test result from the nurse and gave it to the counselor.

   There were physical complications after the abortion which took the woman to a hospital emergency room on two occasions. The physical problems subsided.

   However, the woman had to be hospitalized for two weeks for depression diagnosed as stemming from the abortion.

   The woman filed a civil lawsuit against the clinic for negligence. She claimed damages not just for her own physical and mental suffering, but also for the life of her child which was wrongfully taken away.

   The court had to dismiss the case, however, on the basis of the statute of limitations. In Montana a malpractice suit is not valid more than five years after the events in question. Blackburn v. Blue Mountain Women’s Clinic, 951 P. 2d 1 (Mont., 1997).