A potentially divisive and emotional jury trial began Monday in a federal court in Denver, pitting a Nebraska couple against a Boulder clinic and doctor who performed a late-term abortion and allegedly missed part of the fetus' skull — found embedded in the wall of her uterus more than a year later.
A doctor performed a hysterectomy to remove it, and now she can't have children.
In 2015 the couple, from a small town in Southeast Nebraska, filed a lawsuit in U.S. District Court in Denver, accusing Dr. Warren Hern and the Boulder Abortion Clinic of medical malpractice.
The couple is seeking money damages for medical care, physical pain and mental suffering, as well as permanent injury, including the loss of her ability to conceive children.
Their attorney, Terry Dougherty of Lincoln, alleges Hern had failed to warn her of the increased risks and negligently misrepresented that the fetus had been entirely removed.
Hern's attorney, Amy Cook Olson, was expected to argue at trial it was the decision to perform a hysterectomy by the woman's own primary doctor that caused her injuries, not him, according to a trial brief filed in the case.
In September, U.S. District Judge Philip Brimmer denied a defense motion for summary judgment, allowing the case to move toward trial.
Court staff confirmed in a phone call that the trial began Monday.
The Journal Star has chosen not to name the couple due to the private nature of the medical information at issue.
In court records, Dougherty said 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 if he even survived the delivery. Delivery also posed significant health risk to the mother, they were told.
"After difficult conversations with each other and their medical providers, (they) determined that it was in the best interest of (her) health to terminate the desired pregnancy," the attorney wrote.
Dougherty said the couple traveled to the Boulder clinic where Hern performed the abortion on Dec. 6, 2013.
At the time, she had been in her 25th week of pregnancy.
That following spring, when she had break-through bleeding, her regular doctor changed her birth control, thinking it was a hormonal imbalance, Dougherty wrote in a trial brief.
He said when the bleeding continued a gynecologist ordered an ultrasound that revealed the cause: a 4-centimeter long object, consistent with the curved portion of a fetus' skull, cutting into her uterine wall.
Dougherty alleges Hern breached his standard of care by not warning her of an increased risk that fragments of bone could be left behind if he proceeded even though she failed to dilate more than 1 or 2 centimeters. He says it was medical malpractice.
Hern's attorney, Cook Olson, denied it, but spent much of a pretrial brief raising concerns about jury selection.
"Abortion is a controversial issue in United States culture and politics," she wrote. "The right to an abortion in the second term of pregnancy is of particular controversy ... resulting in various state legislative restrictions."
Nebraska law bans abortions after 20 weeks.
Cook Olson proposed that potential jurors be questioned privately by the attorneys and judge on their positions on abortion and experiences with it, rather than in open court.
Potential jurors were given questionnaires asking their views and whether they or anyone close to them has had an abortion and if they could be fair and impartial to both sides.
Trial is expected to last 10 days.