A jury trial began in a federal court pitting a Nebraska couple against a Boulder clinic and Dr. Warren Hern. Hern, who performed a late-term abortion on Jennifer (pseudonym used), allegedly missed part of the fetus’ skull. That piece of skull was instead found embedded in the wall of her uterus more than a year later.
According to a Federal Court lawsuit filed by Jennifer and her husband in Colorado, Jennifer suffered a horrific late-term abortion complication that caused her intense physical pain, mental anguish, and the loss of her fertility.
The couple is seeking $75,000 in medical costs, plus attorney fees and any punitive damages.
The lawsuit against Dr. Hern alleges four causes of action: Medical malpractice, Failure to warn, Negligent misrepresentation, and Loss of consortium.
Dr. Warren Hern is a well-known late-term abortion physician who founded the Boulder Abortion Clinic when Roe v Wade became law. He was featured in “After Tiller,” an independent film which profiled Hern and three others who openly conduct abortions throughout all nine months of pregnancy.
The couple’s doctor told them in November 2013 that an MRI had shown their baby boy was missing a part of his brain and would live less than a year. And that was only if he survived labor and delivery. The couple was also told that delivery would pose significant health risks to the mother.
Jennifer was scheduled for a four-day abortion procedure set to begin on December 3, 2013. As instructed by Hern’s staff, she checked into a hotel the evening before her appointment. Her anticipated stay was until December 7.
Her husband and her mother accompanied her for support during the late-term abortion process. Once she got to the clinic, however, she was told for the first time that she could only have one support person, so her mother was sent away.
Payment had to be taken care of so, before Jennifer could been seen, she was required to wire $7,500 to the Boulder Abortion Clinic.
Jennifer was given an ultrasound and blood work once the money was received. The clinic staff gave the couple “reading material” and required that they watch an instructional video “produced by Dr. Hern’s office” that described the abortion procedure.
But, according to the lawsuit, the printed material and video failed to mention known risks.
In fact, Jennifer says she was never informed of any risks to the Dilation and Evacuation dismemberment abortion procedure by Dr. Hern or his staff.
The couple’s lawsuit claims that Hern was negligent in seven ways:
1. Hern conducted a Dilation and Evacuation dismemberment abortion procedure on her nearly full term baby through an inadequately dilated cervix.
2. Hern failed to remove all of the baby’s remains from Jennifer’s uterus.
3. Hern failed to inspect the remains to ensure everything had been removed
4. Hern failed to detect the piece of bone that he had missed during the dismemberment process
5. Hern failed to order appropriate postoperative tests, which would have helped discover the skull fragment
6. Hern failed to exercise supervision over his staff to ensure they provided adequate medical care
7. Hern failed to provide diagnostic, operative, and postoperative treatment “consistent with the applicable standard of care for a physician practicing in Dr. Hern’s specialized area of medicine.”
“From the legal complaint, it looks like there was more effort put into making sure the couple’s money was received by Hern’s bank account than there was in determining whether the abortion was complete,” said Newman. “These were careless, sloppy practices that led to months of suffering and could have cost this lady her life,” said the couple’s lawyer.
Currently, late-term abortions are banned in Nebraska, which is why the couple went to Colorado to find a physician who could perform the procedure.
In 2015 the couple, who are from a small town in Nebraska, filed a lawsuit in U.S. District Court in Denver, accusing Dr. Hern and his clinic of medical malpractice.
The couple is seeking monetary damages for medical care, physical pain and mental suffering, as well as permanent injury, including the loss of her ability to bear children.
If the lawsuit against Hern and his Boulder abortion clinic is successful, it could reignite the debate into late term abortions and their safety. It could also cost the Dr. Hern his medical license.