The patient felt nervous enough. She was 4 1/2 months pregnant with a deformed fetus, lying on a hospital bed, waiting for an abortion. She knew it would be traumatic.
Into her room walked a nurse who, she says, turned her morning into a horror.
The nurse criticized the patient for choosing the abortion, told her she would never get over it, said she would have to celebrate her dead child’s birthday just as she celebrated her living child’s, the patient says.
Then, she says, the nurse started crying and said she was opposed to abortion. The nurse said she had never assisted in an abortion and told the patient that she would have to help her through the difficult procedure.
That was in December 1994. This month, the patient – using the pseudonym Jane Doe – sued Sentara Norfolk General Hospital and the nurse, Nancy C. Benson of Norfolk, for medical malpractice and other alleged misdeeds.
She is seeking $1 million in compensatory damages and $350,000 in punitive damages.
This is the same abortion that prompted another lawsuit earlier this year. In that case, the nurse sued the hospital, claiming religious discrimination: She says she was fired for refusing to help with the Doe operation. That case is pending in federal court.
All sides agree that the nurse was taken off the abortion soon after the incident, suspended, then quit a few days later.
The patient sued Dec. 6 in Circuit Court under a pseudonym to protect her privacy. She says, in court papers, that she feared the nurse would withhold pain medication and would not help her through the procedure.
“This really doesn’t come down to whether you’re pro-life or pro-choice,” said Doe’s attorney, Michael L. Goodove. “She (the patient) has made a lawful decision to terminate a pregnancy and she should not be subject to someone else’s views. . . . A professional nurse should never, ever subject a patient to this kind of treatment.”
Sentara agrees that the nurse was out of line, even though it is a co-defendant in the new case. The company says it took swift action against the nurse for acting improperly.
“Sentara suspended (Benson) for imposing her views and judgment on a patient,” says a legal brief by Sentara’s attorney, William M. Furr, in the discrimination case. “(The nurse’s) conduct was totally inappropriate.”
The nurse’s attorney did not return repeated phone calls.
Taken together, the two lawsuits put Sentara and the nurse in awkward legal positions.
First, it means Sentara must defend itself against two lawsuits involving the same abortion. The suit filed by Benson says Sentara acted too strongly against the nurse. The suit filed by the patient says Sentara didn’t act strongly enough to protect her from the nurse.
Second, the two lawsuits put the nurse in an odd spot: She is suing Sentara in one case, but she is a co-defendant with Sentara in the other.
“Litigation makes strange bedfellows,” said a Sentara attorney, William E. Rachels Jr.
“The hospital is certainly caught between a rock and a hard place,” said Goodove, the patient’s attorney.
The nurse’s lawsuit was filed in March and is pending in federal court in Norfolk. A judge heard arguments last week and will rule soon on Sentara’s motion to throw the lawsuit out. The trial is scheduled for Jan. 14.
Court documents, including sworn depositions by the nurse, patient and her family, spell out what happened in the hospital room the morning of Dec. 22, 1994.
Jane Doe was about 20 weeks pregnant – halfway to her baby’s birth – but there were problems. Medical examinations found severe abnormalities in the fetus, including spina bifida, water on the brain and clubfeet, Goodove said.
After much agonizing, the patient and her husband decided to abort.
At Norfolk General, Nancy Benson was one of five nurses in the labor-and-delivery unit. She was assigned to the abortion.
Benson did not want to do the abortion, she says in her lawsuit. She says she had strong religious and moral objections. She says Sentara knew her feelings, yet ordered her to help with the Doe abortion.
Sentara says in court papers that Benson never told her supervisors how she felt and certainly never filed her objections in writing. If she had, Sentara says, the nurse never would have been assigned to abortions. Sentara also says that Benson could have swapped assignments with another nurse.
Benson says there was not enough time and, anyway, it violated her religious beliefs to ask someone else to help with an abortion.
About 7:30 a.m., Benson started an intravenous line and began giving the patient medications. What happened next is spelled out in Sentara’s legal brief in the discrimination case:
The nurse said, “I don’t do these,” meaning abortions. The nurse told Jane Doe that the abortion would always be with her, that she would never forget it, that it might be traumatic and it might come up later in her life.
The nurse also told Doe that she would need to celebrate the dead child’s birthday the same as her living child’s.
The nurse questioned the fetus’ deformity, according to the legal brief. She told Doe that there are boys and girls at Children’s Hospital of The King’s Daughters born with this defect and they are beautiful. She told Doe there was some doubt as to the fetus’ birth defect and asked if Doe had gotten a second opinion.
At that point, the brief says, Doe asked Benson if she was opposed to abortion, and Benson said yes. The nurse started crying, told Doe she would have a hard time dealing with this and said she might never get over it. She asked the patient to help her – the nurse – get through the procedure.
John and Jane Doe complained and the nurse was removed. She was later suspended and eventually quit.
Benson says she was forced out because of her religious views. Sentara says Benson’s conduct was intolerable.
“Health care providers have a right to their religions,” Sentara’s legal brief states, “but they do not have a right to impose their religious views on their patients.”
The new lawsuit has not yet been served on Benson or Sentara, so they have not yet replied.
Meanwhile, a third lawsuit involving abortion at Norfolk General has been settled out of court.
In that case, another nurse – Deborah J. Michael of Gatesville, N.C. – claimed Sentara fired her for refusing to help with abortions. It was filed in March at the same time as Benson’s lawsuit and was scheduled for trial this month.
“Sentara was ready and willing to take this case to trial,” Furr said, “but agreed to a resolution of this case when Ms. Michael decided to conclude the lawsuit for personal and emotional reasons.”