Legal Liability in Referral or Recommendation of Induced Abortion

Association for Interdisciplinary Research in Values and Social Change
by Thomas W. Strahan
Vol 17, No 5
Nov/Dec 2003
Reproduced with Permission


Many states have laws which regulate various methods of referral for medical care by prohibiting or limiting "fee splitting" between the referral source and the provider of the medical care. Referral sources may also engage in the illegal practice of medicine. Some of these activities may be a crime and they may be prohibited by injunctive relief or other legal remedy. This article summarizes cases where these activities have been prohibited in the context of abortion. The relatively small number of reported investigations or prosecutions which were identified suggest that more could be done in this area.

In addition, there may be civil remedies for negligent referral or recommendation of an abortion where the person making the referral or recommendation has a legal duty to the woman who suffers an injury as a result of the abortion. Various legal theories employed include breach of a fiduciary duty, negligent referral, negligent or intentional infliction of emotional distress, violation of the right of a woman to chose to bear a child or other negligent actions which resulted in abortion injury. Various cases have identified at least some of the individuals or organizations who may be held responsible. These include medical doctors or other health care provider, public school officials, a Planned Parenthood affiliate, and a health maintenance organization and serve as a warning to those who may refer or recommend an abortion.

Illegal Referral Agency/Illegal Practice of Medicine

The leading case in connection with an illegal referral agency and illegal practice of medicine in the context of induced abortion is State v. Abortion Information Agency, Inc1, which arose shortly after the legalization of abortion in the state of New York. In this case, Abortion Information Agency, Inc. advertised for patronage and provided counseling and information to women regarding abortions. AIA also acted as a referral agency for hospital and medical services, and hired and paid doctors to perform abortions, paid for certain hospital facilities, and collected fees for services which were split with the doctor and hospital. AIA employees, based upon a prepared set of questions and answers, determined the type of abortion to be performed. The court held that (1) The corporation was engaging in the practice of medicine by hiring doctors to act for it; (2) The activities exceeded the corporate powers set forth in the agency's certificate of incorporation; (3) Their activities constituted "fee splitting" which violated a statute prohibiting the payment to another for referring to a physician; (4) They engaged in the "practice of medicine" when a determination was made by the agency's own employees as to the type of abortion to be performed, and; (5) They were acting as a commercial broker in the sale of medical and hospital abortion services. The court granted an injunction prohibiting AIA from conducting business as an abortion referral agency, or disposing of assets or property, and authorized the appointment of a receiver.

In the related case of S.P.S. Consultants Inc. v. Lefkowitz2, for-profit abortion referral agencies sought to enjoin the enforcement of a New York state statute prohibiting for-profit referral or recommendation of persons to a physician, hospital or other medical care on constitutional grounds as a violation of First Amendment rights. The statute applied to for-profit referral or recommendation but not to non-profit organizations. There was evidence that the for-profit personnel lacked any medical training and followed a prepared script in making referrals for out-of-state patients. The court found that the distinction was rationally related to a legitimate state purpose and upheld the statute.

Many referral abuses also were uncovered in Illinois as a result of the investigation of four Chicago abortion clinics over a five month period during 1978. Investigators included two reporters from the Chicago-Sun Times as well as members of a citizen watch-dog group known as the Better Government Association (BGA).The findings from their investigation were printed in several issues of the Chicago Sun Times newspaper during 1978. The investigators found that newspaper ads were a primary source of solicitation for abortion for some of the abortion facilities. In the Chicago-Sun Times alone, one of the clinics ran nine different ads a day with nine different numbers and nine different names. Investigators found that, although there were dozens of different phone numbers listed for abortion information and referral, most of them ring at only a few places. Other ads promoted hot lines and referral services that refer women only to facilities that give them a cut of the abortion fee. At a referral service that operated three hot lines, a BGA investigator was admonished for not selling hard enough while working as an employee there. To make sure that employees were positive enough, the referral services paid commissions to their employees. One hot line operator was quoted as saying, "no matter how you put it, we're in the business of selling abortions... Use a positive approach. It's not, Do you want a termination, but when?"3

Some referral services were found to have routinely swindled women by giving them little or no counseling in addition to haphazard pregnancy tests. Also, there were complaints made to the Attorney Generals office from women who paid $75 to $275 for a referral for second trimester abortions which, at that time, could only be performed in hospitals. In each case, the women were directed to doctors who knew nothing of the arrangements and refused to perform the procedure. The women were reported as never having received refunds and subsequently carried their babies to term.(3)

One Chicago referral service was credited with 113 abortions in one week at a single abortion facility. At $45-$60 per referral, this added up to over $5000 for a week of referrals. The referral services did not monitor the quality of the abortion facility, but referred women only to clinics with which they had financial arrangements. The women did not know that they were paying a counseling fee. For women who paid cash, the money was placed in an envelope in an amount equal to the "abortion price" quoted by the referral service and paid to the referral service. This price included the referral fee of $60. The referral service removed $60 and gave the sealed envelope back to the woman containing the remaining money which was then paid to the abortion facility. One patient learned she had paid a counseling fee only when she was readied for her abortion. A nurse at one of the abortion facilities asked if she had come from the hot line and shook her head when she found out that this was the case. "At the hot line, they charge you $60 for sending you over here", the woman was told. "They put their numbers right next to ours in newspaper." The woman said, "I think that's a real rip-off, it's deception."(3)

In Okereke v. State4, a lay operator of an abortion advisory and referral service who was not a professional, solicited patients for abortions to be exclusively performed by a particular medical doctor, and received compensation from the medical doctor for doing so. The court found that the compensation received was essentially dependent upon the number of patients referred. The court found this to be pooling of fees between professionals and non-professionals which was not permitted under the Education Law of the state of New York. This pooling of fees was held sufficient to suspend the license of the medical doctor and constituted the fraudulent practice of medicine. The court stated that, "it is well settled that a professional's payment of a commission on fees realized from patients procured by an unlicensed person is improper and unprofessional." The court upheld that five years probation and a three year suspension of the medical doctor's license with two years and nine months stayed was not unduly harsh.

Negligent or Wrongful Referral or Recommendation

Cole v. Delaware League for Planned Parenthood5, was a case brought under the theory of breach6 of a fiduciary relationship. Plaintiff, a minor at the time of the referral, signed a request for a referral for an abortion procedure7 on a form provided by the defendant which stated, "Information about abortion and abortion facilities has been explained to me by a staff person at DLPP. No guarantee or assurance has been made to me by the staff person as to the results that may be obtained. I fully understand that it is my choice and release DLPP from any responsibility." The document was signed by the plaintiff and witnessed by an individual identified as a "counselor." Plaintiff subsequently claimed she was sterile after undergoing an abortion. Plaintiff also claimed the defendant's employee, who was neither a licensed nurse nor a licensed physician, gratuitously assumed a fiduciary duty to counsel the plaintiff, but failed to inform her of alternatives to abortion, risks of abortion, biological information regarding stage of development of the unborn child, and possible long-term consequences8. Neither the employee nor the Delaware League for Planned Parenthood was licensed as a health care provider. Lack of licensing as a health care provider extended the time for possible liability for plaintiffs injury. The case was remanded to the trial court for further development of the record to determine when the plaintiff knew or should have known when she developed an injury as a result of the abortion. This case illustrates that a gratuitous referral does not guarantee that a pregnant woman will be protected from exploitation and possible injury from abortion.

In Showery v. State9, a medical doctor who was performing abortions in Texas, was convicted of the crime of misapplication of fiduciary property and sentenced to four years in prison. He had failed to turn over insurance proceeds owed to a woman as reimbursement who had prepaid for an abortion. The woman had been referred to the doctor by the Texas Mental Health Retardation hotline for a pregnancy test and abortion. The doctor's first attempt to perform an abortion failed, and a second procedure took place. After the first abortion attempt failed, the doctor said he was not "Sears" and did not guarantee his work. Following the second procedure, the woman required psychiatric counseling and was hospitalized for suicidal depression. Although this case did not address the responsibility of the hotline, there is evidence that the hotline may have made a negligent referral.

A Health Maintenance Organization may be held accountable for referring patients to incompetent or negligent doctors to perform an abortion. In a California case, of Santana v. Inland Empire Health Plan, Vantage Medical Group and Joseph Durante10, the plaintiff filed a suit against an HMO as well as a physicians association which provided medical services to the HMO, and who had subcontracted with Dr. Joseph Durante who operated several clinics in California which perform abortions. At the time of the referral, Durante was on probation by the state medical board for gross negligence. According to the complaint, he failed to properly diagnose and treat the plaintiff after she suffered a perforated uterus while undergoing an abortion which resulted in 18 days in the hospital including 8 days in intensive care where she nearly lost her life. The HMO claimed it was not liable for medical malpractice because it was not a health care provider and that Durante was not an employee of the HMO. The trial court denied the HMO's motion for dismissal and held that it could be held liable for a negligent referral and ordered that the case proceed to trial.

In some cases it appears that medical professionals suggested or urged abortion without any real familiarity with the medical, social or psychological literature on the subject11. In Wall v. Pecaro12, a pregnant woman sought medical treatment from a medical doctor regarding a tumorous growth in her mouth. As part of the proposed treatment, the doctor allegedly repeatedly and urgently urged that she abort her 5 1/2 month old unborn child. He also recommended the surgical removal of some internal structure and tissues. The doctor continued to urge her to do so even after the termination of their relationship and that, if she failed to do so, her cancer would spread rapidly. Plaintiff brought an action for intentional infliction of emotional distress. Although her complaint was initially dismissed, the appellate court held that her complaint had stated a cause of action, although yet unproven, and remanded the case to the trial court.

In Gum v. Golshahl13, a California case, the plaintiff sought medical advice because she did not have her menstrual period. Her medical defendant doctor prescribed the drug Provera in an attempt to induce plaintiff's menses. When the plaintiff realized she was pregnant, the doctor advised her to have an abortion because of possible damage to the fetus. The plaintiff did so and suffered psychological trauma as a result. The jury returned a $65,000 verdict in favor of the plaintiff based upon the defendant's negligence in failing to perform a conclusive pregnancy test and for prescribing a drug harmful to her fetus.

In Cozzitorto v. Andrews14, another California case, the plaintiff sustained minor injuries when her automobile was struck in the rear by the defendant's automobile. The defendant admitted liability for the automobile accident. The plaintiff received X-rays from a chiropractor. She later discovered she was pregnant and had an abortion based on her chiropractor's advice. The plaintiff sued the defendant contending that the defendant was responsible for her emotional distress, which directly resulted from the abortion. The defendant filed a cross-complaint against the chiropractor for negligently advising the plaintiff to have an abortion. The plaintiff was awarded $37,075 from the defendant and the defendant recovered $10,538 from the chiropractor on the cross-complaint.

Urging someone to obtain an abortion together with taking action to help carry it out can violate constitutional rights. In Arnold v. Board of Education of Escambia County, Alabama15, a counselor and vice-principal of a public school allegedly coerced a minor pregnant student and the putative father, also a minor, into deciding to obtain an abortion without consulting with their parents before making a decision. The 11th Circuit Court of Appeals held that the allegations stated a cause of action for violation of civil rights because coercing a minor to abort violates the minor's constitutionally protected right under the 14th Amendment to choose whether to bear or abort her child; the officials acted under the "color of law"; the allegations were sufficient to state a cause of action under 42 U.S.C. 1981, 1983 and 1985; and an allegation that a school guidance counselor imposed her will upon a student to have an abortion against the student's religious beliefs violated the First Amendment16. The further allegation that black students were counseled to have abortions while white students were counseled to carry to term also sufficiently stated a cause of action.

If a medical professional relies on erroneous information, this may also lead to a recommendation for abortion. In Martinez v. Long-Island Jewish-Hillside Medical Center17, an action was brought by the plaintiff and her husband to recover damages for personal injury based on medical malpractice. The plaintiff had been misinformed by her obstetrician that "massive doses" of a steroid which he believed she had taken would cause her unborn child to develop a cleft palate and suffer such severe brain damage that the child would be unable to breathe without machines and would be permanently institutionalized. The plaintiff, despite her strong religious beliefs to the contrary, was ultimately persuaded to undergo an abortion. The defendant's advice was based on the erroneous and unverified belief that the plaintiff had taken 500 milligrams of a steroid four times a day over a four week period. In fact, the actual dosage was only 0.5 milligrams, an amount not likely to harm the unborn child. At trial, the plaintiff testified, with verification by her psychologist, that she believed abortion was a sin unless there were exceptional circumstances. When she found out these exceptional circumstances did not exist, she suffered deep mental anguish and depression from needlessly committing an act in violation of her deep-seated convictions. After a series of appeals, the New York Court of Appeals found that defendants had a duty to correctly ascertain the dosage with the prescribing physician. It also found that where there was a special likelihood of genuine and serious emotional distress, the consequences were foreseeable that it would have a serious psychological impact on the plaintiff and upheld the verdict in favor of the plaintiff, as reduced by the trial court.


1 State v. Abortion Information Agency, Inc., 323 N.Y.S.2d 597 (1971) [Back]

2 S.RS. Consultants, Inc. v. Lefkowitz, 333 F.Supp. 1373 (S.D. N.Y. 1971) [Back]

3 The Abortion Profiteers Series, Chicago Sun-Times 11/12/78- 12/3/78 [Back]

4 Okereke v. State, 518 N.Y.S.2d 210 (A.D. 3 Dept 1987); Other states may also prohibit referrals for profit. See Code of Virginia Section 18.2-502 prohibiting medical referral for profit unless person is advised of criteria of selection of physician or medical facility; Illinois Medical Practice Act 225 ILCS/60/22, Subd.A (14) with limited exceptions prohibits fee splining in connection with patient referrals; also, Practice Management, Ltd., v. Schwartz, 628 N.E.2d 656 (App. 1 Dist. 1993); California Code, Welfare and Institutions 14107.2 prohibiting bribery, kickbacks by providers under Medi-Cal program; California Code 14022, 14030, 14031 defining conflict of interest under Medi-Cal. See also federal Medicare Fraud and Abuse Statute imposing criminal sanctions on physicians who receive remuneration in exchange for referring Medicaid or Medicare patients to other health care providers. 42 U.S.C. Section 1320 a-7(b)(1) and 1320a-7(b)(2). [Back]

5 Cole v. Delaware League for Planned Parenthood, 530 A.2d 1119 (Del. 1987) [Back]

6 Breach of fiduciary duty may also arise in other situations. See Breyne v. Potter, 574 S.E.2d 916 (Ga. App. 2002) finding a breach of fiduciary duty where physician made a misdiagnosis which resulted in a decision for abortion and subsequent injury; Showery v. State, 678 S.W.2d 103 (Text App. 8 Dist 1984) finding that physician breached a fiduciary duty to patient when he deposited insurance reimbursement proceeds in his business bank account and refused to tender them to patient; Neade v. Portes, 710 N.E.2d 418 (I11.3nd Dist 1999) which held that it was a breach of fiduciary duty to patient for failure of doctor to disclose a financial incentive scheme to limit treatment. [Back]

7 Attempts to release abortion facilities from liability in the abortion context have not been upheld because they are considered violations of public policy. Broemmer v. Abortion Services of Phoenix, Ltd., 840 R2d 1014 (Ariz. 1992) (en banc) (unenforceable contract of adhesion); Sanchez v. Simmons, 467 N.Y.S.2d 757 (N.Y. 1983) (arbitration clause in 'Consent to Abortion' form unenforceable); Olson v. Molzen, 558 S.W.2d 429 (Teen. 1977) (exculpatory contract as a condition of receiving abortion was invalid as contrary to public policy.) [Back]

8 A study of 53 women members of an organization called Women Exploited by Abortion who received counseling at various Planned Parenthood affiliates also reported lack of information about the biological nature of the fetus and risks of abortion and believed that Planned Parenthood was biased in favor of abortion. Aborted Women. Silent No More, D. Reardon (1987) 337 [Back]

9 Showery v. State, 678 S.W.2d 103 (Tex.App. 8 Dist. 1984) [Back]

10  [Back]

HMOs accountable for doctor referrals, The Desert Sun, Palm Springs,CA, Sept 14 2001, p. 14

11 See Thomas Goodwin, Medicalizing Abortion Decisions, First Things 61:33, 1996 concluding that medical professionals may casually suggest abortion - whenever they think that there might be a risk to the mother or unborn child, without any real familiarity with the medical literature on the subject. [Back]

12 Wall v. Pecaro, 561 N.E.2d 1084 (III. App. Ct. 1 Dist. 1991) [Back]

13 Gum v. Golshdahl, Case No. 885-1374, Summit Co. Court of Common Pleas, January, 1990 [Back]

14 Cozitorto v. Andrews, Case No. 327380, Sacramento Co., CA, 1989 [Back]

15 Arnold v. Board of Education of Escambia County, Alabama, 880 F.2d 305 (11th Cir. 1989) [Back]

16 See also Acuna v. Turkish, 808 A.2d 149 (N.J. Super A.D. 2002) holding that a woman may have a fundamental right to a relationship with her child citing In Re Baby M, 109 N.J. 396, 447, 537 A.2d. 1227 (1988) ("the rights of personal intimacy, of family, of procreation... are fundamental rights protected by both the federal and state constitutions"). [Back]

17 Martinez v. Long Island Jewish Medical Center, 519 N.Y.S.2d 53 (1987); 518 N.Y.S. 2d 955; 504 N.Y.S.2d 693 (1986) [Back]