New York appeals court finds state not liable for death after physician under review performed abortion.

On March 7, the Supreme Court of New York, Appellate Division, Third Department, ruled that the husband and estate of a woman who died following an abortion performed by a physician whose license was under review cannot sue state officials for damages for her wrongful death. Writing for a unanimous five-judge panel in Negron vs. State of New York, Judge Edward Spain held that the state public health law explicitly grants immunity to members of the Board for Professional Medical Conduct's Hearing Committee and the Commissioner of Health for discretionary actions taken within the scope of their duties. Although the Hearing Committee revoked the medical license of the physician--Dr. David Benjamin--for "gross incompetence and negligence" in June 1993, he was permitted to continue practicing while he unsuccessfully appealed that determination. In July 1993, while his appeal was pending, Dr. Benjamin performed an abortion on Guadalupe Negron, who died after he tore her uterus during the procedure. The plaintiffs asserted that the Commissioner was required to summarily suspend the physician's license after the Hearing Committee's ruling and that his failure to do so was an abdication of his statutory responsibility. The court found instead that the state officials had the discretion to decide whether to immediately suspend the physician's license. In August 1995, a jury convicted Dr. Benjamin of second-degree murder; he was sentenced to 25 years to life in prison the next month. CRLP filed an amicus brief in Negron vs. State of New York on behalf of the plaintiffs.