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Jury finds against Nebraska couple who accused late-term abortion doctor of malpractice
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Jury finds against Nebraska couple who accused late-term abortion doctor of malpractice


A federal jury in Denver has decided against a Nebraska woman who claimed a Boulder, Colorado,  doctor who performed a late-term abortion on her was to blame for her no longer being able to have children.

The Auburn woman and her husband accused Dr. Warren Hern and the Boulder Abortion Clinic of medical malpractice after part of the fetus' skull was found embedded in the wall of her uterus more than a year after the original procedure.

A Nebraska doctor performed a hysterectomy to remove it, and now the woman can't have children.

The Journal Star has chosen not to name the couple because of the private nature of the medical information at issue.

The jury's decision came at the end of a two-week trial in U.S. District Court.

The family's attorney, Terry Dougherty of Lincoln, had alleged Hern failed to warn the woman of the risks and that the Boulder clinic could be held liable for her care and treatment.

Before the case reached the jury for deliberations Monday afternoon, Judge Philip Brimmer dismissed the clinic from the suit.

Jurors returned just before 5 p.m. Monday with a verdict finding Hern hadn't been negligent and didn't cause the Nebraska woman's injuries.

Tuesday, Hern's attorney, Amy Cook Olson, said after about two hours of deliberation, the nine-person jury reached a unanimous verdict in Hern's favor, rejecting all of the couple's claims as unsupported by the evidence, including the allegation that Hern had failed to properly advise her of the risks.

"Experts testified that Dr. Hern in fact exceeded national standards in the care he provided, that his complication rate is one of the lowest in the nation, and that this complication occurred despite the high level of care provided," she said.

Cook Olson said the hysterectomy was unrelated to the abortion procedure, that Hern strives to avoid any complications and that he wished the Nebraska family well.

In November 2013, the couple's doctor told them their baby boy was missing part of his brain and would live less than a year if he survived the delivery, which also posed a significant health risk to the mother.

After difficult conversations, they decided to terminate the pregnancy for her health and traveled to the Boulder clinic, where Hern performed the abortion on Dec. 6, 2013, according to the lawsuit.

The woman had been in her 25th week of pregnancy. Nebraska law bans abortions after 20 weeks.

Nearly a year later, an ultrasound revealed a 4-centimeter-long object, consistent with the curved portion of a fetus' skull, cutting into her uterine wall.

Reach the writer at 402-473-7237 or

On Twitter @LJSpilger.


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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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