HALIFAX (CP) _ Nova Scotia's highest court has reserved decision in an appeal by a doctor and nurse from Dr. Henry Morgentaler's Halifax clinic found liable for a 1993 car accident that injured two women, including one who had just had an abortion. In December, Justice Douglas MacLellan found Dr. Jacques Desrosiers, who performed the abortion, and counsellor Jean Palmer liable for allowing Wanda MacPhail to drive home to Boutiliers Point, N.S., after having the abortion on March 24, 1993.
The judge ordered Desrosiers and Palmer to pay MacPhail almost $725,000 in the civil lawsuit. MacPhail, 37, had testified she fainted while driving home and her car crossed the centre line on Highway 103 and smashed into an oncoming Bronco, injuring both herself and a woman in the other vehicle.
Desrosiers and Palmer appealed the finding of liability and the size of the award. Their lawyers argued before the Nova Scotia Court of Appeal on Wednesday that their clients acted responsibly and were not liable for the accident, but that even if they were found liable, they should pay MacPhail almost $300,000 less than MacLellan ordered.
``One of the things she was told was that someone had to drive her home, and she agreed that her husband would accompany her,'' lawyer Daniel Campbell told court. MacPhail, a mother of four, will always walk with a cane, suffers short-term memory loss and can never return to her $43,000-a-year job as a nurse at the Victoria General Hospital in Halifax, said her lawyer, Robert Barnes.
He said staff at the abortion clinic should have at least warned MacPhail that she might faint after the procedure and shouldn't have let her drive herself home, especially after she asked if she could take her dead baby home for burial. Barnes quoted Palmer as saying she would have called a taxi for any other patient but bent the rules because she knew MacPhail and that she was a nurse.
Another nurse approached Desrosiers concerned that MacPhail was about to drive home but the doctor didn't do anything, Barnes said. ``None of them did anything. Dr. Desrosiers didn't take 30 seconds of his time to go into the recovery room (to assess) Mrs. MacPhail.''
But Campbell argued that clinic staff had followed accepted procedures. MacPhail had refused a narcotic that would have impaired her ability to drive and had told staff she felt fine, he said. Staff said MacPhail appeared emotionally stable, Campbell said. ``One staff member offered to drive her home at the end of her shift, but the patient declined the offer.''
In her December testimony, MacPhail told court she was quite upset and tearful about the abortion. But Wednesday, Campbell read out a letter she wrote to her insurance adjusters shortly after the car accident. In the letter, she said she was mostly ``relieved.'' That, Campbell said, was vital to striking down Barnes's argument that MacPhail had fainted because of anxiety caused by the abortion. ``All the experts testified fainting could only be caused by a sudden emotional shock,'' Campbell said.
``Nobody said a chronic emotional shock would do so.'' The clinic now has a strict no-driving policy for patients who have just had an abortion. Carol Newbury, who was in the vehicle struck by MacPhail's car, now uses a wheelchair, said Ronald Pizzo, one of her lawyers. Newbury, 55, was suing MacPhail until she and her lawyer heard about MacPhail's civil suit against Desrosiers and Palmer. Newbury and her lawyers are now awaiting the Appeal Court decision before deciding whom they will pursue for damages.