SF 333 (LSB 1940ST (1) 85)

SENATE FILE 333

BY  ERNST

A BILL FOR

An Act establishing a civil cause of action for physical injury or emotional distress resulting from an abortion.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  686.1  Cause of action —— abortion resulting in physical injury or emotional distress.
   1.  A woman upon whom an abortion has been performed may maintain a cause of action against the physician who performed the abortion to recover damages for any physical injury or emotional distress, whether or not independent of the physical injury, proximately caused as the result of the physician’s negligence or failure to obtain informed consent prior to performance of the abortion.
   2.  Notwithstanding any law to the contrary regarding limitations of actions, an action under this section may be brought at any time during the lifetime of the woman.
   3.  The signing of a consent form by the woman prior to the abortion shall not negate the cause of action, but may reduce the recovery of damages to the extent that the content of the consent form informed the woman of the risk of the type of injuries for which the woman is seeking damages.
   4.  This section shall not be construed to render any other statutory or common law cause of action for medical malpractice otherwise available inapplicable to abortion procedures or diminish the nature or the extent of those causes of action. The cause of action expressly specified in this section is in addition to any other statutory or common law cause of action.
   5.  A cause of action shall not be brought under this section if the abortion was performed due to a medical emergency.
   6.  For the purposes of this section:
   a.  “Abortion” means abortion as defined in section 146.1.
   b.  “Damages” means all special and general damages which are recoverable in tort for injuries incurred by the woman including but not limited to actual and punitive damages.
   c.  “Emotional distress” means a severe, debilitating, and persistent negative emotional or mental reaction including but not limited to mental anguish, fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, and indignity, as well as physical pain.

   d.  “Informed consent” means the duty of a physician to disclose all facts about the nature of the procedure, the risks of the procedure, and the alternatives to the procedure that a reasonable patient would consider significant to the patient’s decision to undergo or forego an abortion.
   e.  “Medical emergency” means any condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. 
EXPLANATION
   This bill establishes a cause of action that may be maintained by a woman upon whom an abortion has been performed against the physician who performed the abortion to recover damages for any physical injury or emotional distress proximately caused as the result of the physician’s negligence or failure to obtain informed consent prior to performance of the abortion. The action may be brought at any time during the lifetime of the woman. The bill provides that the signing of a consent form by the woman prior to the abortion does not negate the cause of action, but may reduce the recovery of damages to the extent that the content of the consent form informed the woman of the risk of the type of injuries for which the woman is seeking damages. The bill also provides that other existing statutory or common law causes of action for medical malpractice are not to be construed to be rendered inapplicable to abortion procedures or diminish the nature or the extent of those causes of action. The cause of action expressly specified in the bill is in addition to any other statutory or common law cause of action. A cause of action is prohibited under the bill if the abortion was performed due to a medical emergency.
   The bill defines “abortion”, “damages”, “emotional distress”, “informed consent”, and “medical emergency” for the purposes of the bill.