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Doctors May Be Covered for Abortion Claims in La.

(CN) - Doctors who provided abortions at a women's clinic can sue the Louisiana medical insurance fund, which refused to cover abortion-related medical negligence claims, the 5th Circuit ruled.

Facing a medical negligence action from a woman who allegedly suffered injuries during an abortion, the Hope Medical Group for Women and two unnamed doctors sued nine members of the Louisiana Patient's Compensation Fund Oversight Board, which refused to pay damages resulting from the complaint.

The doctors, K.P. and D.B., are enrolled in the Louisiana Patient's Compensation Fund, which offers members several benefits including a cap on medical malpractice liability. Under the program, qualified members only have to pay malpractice lawsuit damages under $100,000, and the fund pays up to $500,000.

The board that administers the fund decided that K.P. and D.B. were not qualified for coverage connected to abortion-related injuries under a Louisiana law.

A federal judge ruled that the board was entitled to immunity under the 11th amendment, which protects states from being sued in federal court by private individuals.

The 5th Circuit in New Orleans reversed the ruling, finding that the case is not moot and the abortion providers have standing.

"The rule is based on the legal fiction that a sovereign state cannot act unconstitutionally," Circuit Judge Leslie Southwick wrote in the court's lead opinion. "Thus, where a state actor enforces an unconstitutional law, he is stripped of his official clothing and becomes a private person subject to suit."

The board members are not immune because they are connected to the disputed act, according to the ruling.

"In summary, the board's role starts with deciding whether to have a medical review panel consider abortion claims and ends with deciding whether to pay them," Southwick wrote. "By virtue of these responsibilities, board members are delegated some enforcement authority."

Circuit Judge James Dennis wrote a concurring opinion.

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