Morgentaler staff found liable for traffic accident after allowing patient to drive

A doctor and nurse at Halifax's Morgentaler abortion clinic are appealing a court ruling that awarded more than $700,000 to a woman who was badly injured in a car accident after an abortion.

Nova Scotia Supreme Court Justice Douglas MacLellan ruled Dr. Jacques Desrosiers and nurse Jean Palmer should not have allowed Wanda MacPhail to drive home following an abortion March 24, 1993.

`Unusually large'

He awarded MacPhail $724,547 - mostly for lost future income - along with prejudgment interest of $9,105, and $41,393 in legal costs.

"We thought it was unusually large and that's why we appealed it," said Desrosiers and Palmer's lawyer Daniel Campbell yesterday. The appeal will be heard May 20.

In his Dec. 23, 1997 decision, MacLellan ruled MacPhail, 37, was traumatized by the abortion and should not have been permitted to drive herself home to Boutiliers Point, 40 kilometres away.

"I find that Dr. Desrosiers and Jean Palmer breached their duty of care to the plaintiff by not ensuring that they, or some staff member, advised her not to drive," MacLellan said in the written decision.

He found MacPhail, a nurse and mother of four, didn't want to have the abortion but chose to do so largely because her husband was upset by her pregnancy.

"Later, as she drove home, I believe the intense emotional turmoil of aborting what she described as a baby, caused her to faint.

"This resulted in her losing control of her vehicle and letting it cross the centre line of the highway and being struck by the other vehicle," MacLellan wrote.

According to his decision, MacPhail told Palmer she would be driving herself home after the surgery. She had intended to bring her husband, but couldn't get a babysitter.

Before the 10:45 a.m. surgery, Palmer gave her one milligram of Ativan, an anti-anxiety pill. MacPhail testified that when she took the sedative, Palmer did not talk to her about driving home.

The abortion took 15 to 20 minutes, after which MacPhail said she was physically OK, but emotionally shaken. She was taken to a recovery room where she sat for 30 to 45 minutes in a "robot-like" state.

She left the clinic and decided to go to a Burger King to collect herself before the drive home. While there, she started to cry. She continued to wipe away tears as she headed for home on Highway 103. shortly after 1 p.m.

"The next thing she remembers is seeing a blue truck in her windshield directly in front of her. She said to herself, `Oh my God, I'm on the other side of the highway,'" said the decision.

She woke up in hospital with numerous injuries, including a head laceration, crushed nose, fractured chest bone, collapsed lung, broken ribs, fractured leg, and a torn knee cap that had to be removed.

A passenger in the blue truck, Carol Newbury, also suffered serious injuries and filed suit against MacPhail and abortion-clinic staff for letting MacPhail drive.

On cross-examination, Desrosiers said he made no attempt to dissuade MacPhail from driving because she did not seem to be at risk. Palmer told the judge she would normally not allow a woman to drive after an abortion, but made an exception for MacPhail because she was a nurse.

MacLellan found abortion-clinic staff was also liable for Newbury's injuries, but MacPhail wasn't. He did not make a decision on damages in that case.

Desrosiers and Palmer are appealing on a number of grounds. They allege the judge erred "in determining a standard of care which is completely unsupported by the evidence," and in the amount awarded.

Their notice of appeal also claims the judge "failed to consider the contributing negligence of the plaintiff, Wanda MacPhail."

Partial stay

MacPhail's lawyer would not comment because the appeal is still before the courts.

In light of the appeal, the court issued a partial stay on the payment order. Desrosiers and Palmer were to pay $5,000 per month beginning Jan. 1 until the the beginning of this month, pending the appeal outcome.

According to Desrosiers's testimony, the Morgentaler clinic now requires patients be accompanied when coming for abortions. The change was made because of MacPhail's lawsuit.