Lawyers enter abortion fray on side of injured women.

As the battle over abortion rages cross the country, making big headlines and stirring passions on all sides, a few attorneys are working quietly with abortion patients in an area the lawyers say has, nothing to do with the political question of abortion rights: litigation over negligently performed abortions.

Like any other medical procedure, these attorneys say, abortion can be botched, and patients can suffer severe injuries--or even death--as a result. They tell of clients with perforated organs, unnecessary hysterectomies, excessive bleeding, and life-threatening infections. They tell of women who received little or no pre-abortion counseling and were traumatized by abortions they later decided they didn't want.

These lawyers have gone where many others fear to tread: into the realm of the politically incorrect.

"The plaintiffs' bar tends to treat abortion malpractice somewhat differently than all other forms of medical malpractice and puts it in some other category," said John Fitzgerald, an attorney in Yonkers, New York, who is also head of ATLA's Abortion Malpractice Litigation Group.

"I think that's because there is concern that lawsuits against abortion providers will tend to restrict a woman's right to choose. But it seems if women receive poor medical care, then the plaintiffs' bar should consider those cases."

About 1.5 million abortions are performed annually in the United States, said Dr. Dennis Christensen, medical director of a Madison, Wisconsin, abortion clinic who has testified as an expert in abortion negligence cases.

Christensen estimated that only about 100 of those procedures result in negligence claims against providers each year.

These cases involve issues similar to those in other medical negligence cases: causation of physical and emotional injuries, standard of care, and informed consent.

Claims range from negligence to battery to infliction of emotional distress -- "old Torts 101 concepts," said Ted Amshoff Jr., a lawyer in Louisville, Kentucky, who represents several women who say they were injured during abortion procedures.

Christensen said three major complications can result from abortion:

* Physical injuries like punctures in the uterus or adjacent organs or tears in the cervix.

* Severe bleeding, which can result from the procedure itself when it proceeds normally or from a physical injury during surgery. Excessive bleeding can make it necessary for the provider to perform more extensive surgery, including hysterectomy.

* Incomplete removal of the fetus, which can lead to infection. Although the uterus usually expels the fetal tissue that remains, in rare cases the pregnancy may continue.

The standard of care for abortion is "well agreed upon," Christensen said. It requires that providers perform an adequate evaluation of the patient before the abortion- use proper surgical techniques; evaluate the success of the procedure specifically, ensure that all fetal and placental tissue was removed from the uterus); and provide adequate follow-up care.

Even when injuries occur during an abortion, in many cases they can be repaired immediately and the procedure completed successfully, Christensen said. In other cases, however, providers have so deviated from the standard of care that patients are permanently injured--or worse.

Amshoff, the Louisville lawyer, described a case in which a woman undergoing an abortion in an Alabama clinic began bleeding severely. When her vital signs declined, the procedure was stopped and clinic staff called an ambulance to take her to a nearby hospital. The doctor in charge, however, canceled the call and left the clinic. The staff called the ambulance again, but the patient died later at the hospital.

After filing a wrongful death action on behalf of the woman's family, Amshoff discovered that the doctor at the clinic had tried to destroy records about the case. The doctor's license has since been revoked; the family's suit against the clinic and the doctor is pending. (Doe v. Tucker, No. CV9300632 (Ala., Jefferson County Cir. Ct. filed Jan. 25, 1993). (At Amshoff's request, the plaintiff's name has been withheld to protect the client's privacy.

Emotional Impact

In other cases women have claimed that the harm they suffered from an abortion was primarily emotional. These cases usually focus on whether the woman received adequate counseling before the abortion and was able to give her informed consent.

Amshoff said some clinics have an "assembly-line mentality," favoring quantity over quality of services. They skimp on physician contact with patients and offer only general, nonmedical counseling that is not tailored to the particulars of a woman's case. In those situations, Amshoff said, "the first time [the patient] sees a doctor is when she's lying on the table."

Fitzgerald called emotional injury claims "tough cases." But he agreed that without informed consent, the emotional fallout from abortion can be traumatic. "After the abortion they realize that they never had a relationship with a doctor and they never got any counseling," he said of his emotional injury clients. "They realize better what their emotional state was at the time."

Some women suffer a form of posttraumatic stress disorder, said Anne Speckhard, a licensed counselor in Alexandria, Virginia, who works with women who are emotionally troubled after having abortions. She calls their condition "post-abortion syndrome." The key issue, she said, is how great an attachment the woman formed with the fetus before she had the abortion.

Emotional or psychological trauma can be avoided with proper pre-abortion counseling, Speckhard said, which should identify women who are unsure of their decision to end the pregnancy. "There should be an assessment in every case of how the woman came to this decision and whether it's a good decision--not a good decision in a moral sense but a good decision in terms of whether it will be harmful to the woman," Speckhard said.

She said counseling in many clinics falls short because it focuses on explaining the procedure rather than discussing the woman's decision. Also, many clinics require payment before patients receive counseling, which Speckhard said makes women feel committed to going through with the abortion.

You're assuming a very strong person to be able to stand up and say, "No, I don't want to do this, and I want my money back,"' Speckhard said.

Abortion providers can get true informed consent from patients if counseling "is done carefully and compassionately," she added, with the focus on how the woman reached her decision and how she will feel about it later.

Speckhard acknowledged that litigation over the emotional impact of abortion is a politically sensitive subject. Lawyers who are comfortable with suing for damages when emotional injury arises in other medical negligence cases may resist the idea of bringing claims against abortion providers.

"This wouldn't be an issue if people weren't concerned about losing rights," Speckhard said.

"Almost all our clients arc still pro-choice," and Fitzgerald. "They believe that it's a woman's right to choose. Almost uniformly they say, `Abortion was not for me,' but they are not antiabortion. They still say every woman has a right to choose."

"The very word `abortion' is so surrounded by inflammatory rhetoric," said Amy McInerny, a partner in Amshoff's firm.

"We're not interested in political rhetoric. We're interested in standing up for abortion-injured women. We see ourselves as advocates for women. The facts of our cases are compelling. We're not movement activists, we're a law firm."