Doctors may be liable for patients' fake IDs
■ A column analyzing the impact of recent court decisions on physicians
By Tanya Albert amednews correspondent— Posted May 10, 2004.
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Some Texas physicians who provide abortions might be contemplating an in-office display of the "We Card Hard" sign often found in stores that sell alcohol and tobacco.
At the very minimum, these doctors are likely to start taking a harder look at the identification cards patients use to prove they are 18, the age at which physicians are no longer required to tell parents their daughter has requested an abortion.
In what's believed to be the first lawsuit of its kind, a Texas patient who presented a fake ID and the patient's father were allowed to go forward with a civil lawsuit against a physician who gave the girl an abortion without contacting her parents.
Cherise Mosley Hughes first came into the clinic where Houston general practice physician Douglas Karpen, DO, works in the summer of 2000. She didn't have an ID, so the office staff turned her away, court records said. She later returned with an ID that said she was 18. It was not government-issued but did contain a birth date and Social Security number.
Dr. Karpen said he didn't contact Mosley Hughes' parents because he had no reason to believe the girl was younger than 18.
"It was good-looking ID," Dr. Karpen's lawyer Barbara L. Hachenburg said. "There are a lot of IDs that are not government-issued, for example, work and school IDs."
Mosley Hughes received the abortion. In reality, her 18th birthday was still seven weeks away.
Now married and a mother of two, Mosley Hughes, along with her father, sued Dr. Karpen and the Aaron Women's Medical Center in Houston. They argued that the ID was obviously fake and that the doctor should have seen through it.
"The words 'Not a government document' were printed across the top," said Brent Haynes, one of the attorneys who represented Mosley Hughes and her father, Fredrick Mosley. "How many adults over 18 don't have a government-issued ID? You can't operate without it."
Mosley Hughes and her father sued, saying the doctor and clinic did not use "due diligence" as required by law to determine Hughes' age.
Texas is among the majority of states that require physicians to make reasonable efforts to notify parents before an abortion is performed if the girl is younger than 18 and has not gone to the court for a parental notification waiver. The statute also allows doctors who "intentionally" perform an abortion without parental notification to be charged criminally and face a fine as high as $10,000.
The father and daughter argued that the doctor deprived Mosley Hughes of "the opportunity for parental counseling that the law is designed to provide," and her father wasn't given the opportunity "to counsel his daughter about the magnitude of the decision she was making and to offer her his guidance and love."
Dr. Karpen argued that he did ask for an ID and that he received a believable one. He told jurors he shouldn't be punished when the girl committed fraud to receive the abortion.
A Houston-area jury in April said there was no question that an abortion had been performed on a girl who was younger than 18, in violation of the Texas parental notification law. But it didn't award any money to Mosley Hughes or her father.
It placed 90% of the blame on the girl. The other 10% of the blame was placed on the physician.
In a sense, the case was a win for doctors because no money was awarded. "This was a frivolous lawsuit," Hachenburg said. "You can't commit fraud and then come into court and sue the people you deceived."
But at the same time, it is a loss for physicians. Dr. Karpen had to spend time and money defending himself.
Also, when the judge chose not to throw out the lawsuit, the stage was set for future lawsuits against physicians in Texas for not properly checking a girl's age. If someone brings a stronger case against a physician, a jury may be inclined to award money to that plaintiff.
Haynes said Mosley Hughes and her father didn't bring the case for money. "They wanted to raise awareness of what was happening," he said.
A girl may want to lie about her age because she worries about what her parents will think, so Mosley Hughes and her father wanted to ensure that doctors do a thorough job of checking IDs, Haynes said.
Under Texas law, doctors who perform abortions on those younger than 18 have to make a reasonable attempt to contact a parent or guardian 48 hours before the procedure. That can be met several ways, including a letter, phone call or personal visit.
Legal experts say physicians can most protect themselves from girls lying about their ages by insisting upon government-issued identification cards. If a physician is suspicious of the ID, he or she can take additional steps to try to verify the age, such as asking for a birth certificate.
"Unfortunately, that can introduce an adversary element to the physician-patient relationship," said Paul McGreal, a law professor at South Texas College of Law in Houston. "But given that this type of lawsuit can be filed, a doctor may want to ask further questions."
Hachenburg said new guidelines that went into effect in Texas in January also could help physicians protect themselves. Under state law now, women must sign an affidavit saying they are 18.
Haynes said he's already turned down one case in which a parent and child wanted to file a similar lawsuit against a physician because it appeared that the doctor didn't violate the law. "If a doctor really exercises due diligence," he said, "a good plaintiff attorney is not going to bring a lawsuit."
Tanya Albert amednews correspondent—