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Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.
Among the new restrictions appearing in anti-abortion bills nationwide, it is the medical malpractice liability shields that have the potential to alter, perhaps permanently, women’s relationship with the civil justice system.
Both Kansas and Arizona are advancing measures that exempt doctors from medical malpractice suits should they withhold medical information in order to prevent a woman from having an abortion. These bills also shield doctors from malpractice claims if a woman suffers an injury from a pregnancy as a result of information withheld from her to prevent an abortion. Georgia just snuck a liability shield into their 20-week abortion ban. We can expect more to follow.
Proponents of these “wrongful birth” bills argue they are necessary to stem the tide of lawsuits like one in Oregon where parents sued for costs related to the care of their daughter who was born with Down Syndrome. In that case the parents argued that the medical professionals were negligent in conducting the genetic testing and had they known their daughter would be born with a disability they would have had an abortion.
This is the kind of case that is destined to generate lots of headlines and some terrible legislation in its wake. In reality, less than half the states recognize a claim for wrongful birth and in those states that do, cases like this one are rare and these kinds of verdicts ever rarer. Nevertheless, anti-choice activists see an opening, and they are going to take it.
So far neither Kansas, Arizona, or Georgia has yet signed into law these malpractice shields. But assuming they do, the impact on medical malpractice law and the ability of women to justly compensated should they be the victim of sub-standard medical care cannot be overstated.
In order to successfully prosecute a claim for medical malpractice a plaintiff needs to prove that a medical professional violated the standard of care in delivering medical advice or care. This is no easy task. Determining what the standard of care is requires an objective look at the standard practices of similar professionals in similar situations and comparing that the the care delivered in the specific case at hand. Expert testimony is almost always required as other medical professional opine as to what course of treatment and advice was indicated given the specifics of a patient’s case.
The standard of care is considered, roughly in legal standards, to be the average care a patient can expect to receive. The care doesn’t need to exceed this standard but it can’t slip below it without it being considered negligence and doctors and hospitals being held liable for any injuries that come from that negligence.
Wrongful birth bills change all this. With these provisions dictating a specific course of treatment in the case of withholding information to drive a particular medical outcome the standard of care is essentially set by legislators. Say goodbye to a community of medical professionals determining best medical practices.
In practice this means that instead of an objective inquiry into the medical treatment and advice given to a pregnant woman based on what the profession as a whole considers competent medical treatment, the individual beliefs of the doctor will determine if advice given or care rendered was reasonable. In legal terms that changes the inquiry from objective to subjective meaning there is no real basis to judge conduct against. It will no longer matter what a doctor’s peers believe to be considered good medical care: it will only matter if that particular doctor thought the care would avoid an abortion.
Furthermore, that inquiry won’t be focused on advice given or care rendered in the scope of protecting the health and life of the mother, but instead on decisions and care motivated solely to perpetuate a pregnancy. This erases the mother as primary patient to at best, a secondary consideration. What the medical community considers to be competent advice and care will cease to be relevant as the only concern will be did this individual doctor make this individual decision based on his or her individual desire to prevent an abortion. In no other area of tort law do we allow this. And for good reason.
That’s because tort law is designed to compensate victims in the case of others negligence. These malpractice shields presume that withholding information from patients to impact a decision regarding care is an act of negligence. The bill itself proves the point. If providing medical advice based on personal moral beliefs instead of medically evidenced-based indicia was not considered medical malpractice shielding doctors from malpractice would be unnecessary.
The impacts on patient care will also be long-term. One of the effects of tort reform–and these malpractice shields are another form of tort reform– is to weed out dangerous and ineffective medical practices. Instead of providing women with all information necessary so they can make an informed medical decision the standard of care will be to make that decision for them, no matter what that decision happens to be. That means the persuasive force of tort reform will no longer exist in regards to reproductive health care in these states. In fact, these bills could have the opposite effect as the aspect of community review that takes place in determining a standard of care will become irrelevant. Bad doctors will be permitted to continue practicing bad medicine with no consequences, nor any threat of consequences.
That also means that women in states with wrongful birth bills can never be sure the medical information they are receiving is accurate and unbiased, nor can they sue in the event that its wrong or negligent. And that women in states without these bills will have to exercise even more caution and be even greater advocates for their own care as what constitutes good accepted medical practice is no longer easily determinable.
Pregnant women will, in effect be returned to the same legal standing of juveniles or persons under legal guardianship and conservatorship, devoid of the ability to consent to a full course of medical treatment on their own.
The impact of these bills will also reach far beyond just abortion politics. Birth injury cases represent a significant portion of medical malpractice cases in general, in large part because the costs associated with an act of negligence in pregnancy and delivery are so great. Insurance companies generally (and usually successfully) fight coverage for those costs meaning that malpractice recoveries often represent the only financial means of providing for a disabled child. These wrongful birth bills will allow those claims to go uncompensated as all health care professionals need to do to avoid liability in any case is to justify their course of treatment in terms of seeking to prevent an abortion.
The creation of a medical malpractice shield simply strips women of the ability to be compensated for sub-standard medical care rendered to them while pregnant and nothing more.
Couple wrongful birth bills with the federal medical malpractice bill that just passed the House of Representatives and it becomes clear that this push to strip women of the ability to challenge substandard medical care they receive is seen as the solution to that pesky legal reality that women’s bodies receive any legal protections to begin with. And since medical malpractice claims are always claims for money damages, there is no more straightforward a way to say that women’s lives have no value then to take away their ability to bring a claim based on the value of that life to begin with.
16 Comments
I wonder if ALEC is pushing these laws too.
I just LOVED the fact that, after Corbett passed the state rape ultrasound bill with a bunch of other odious provisions damaging to women, he cut 90,000 kids off Medicaid, claiming their “paperwork” wasn’t in order.
If they get away with these things, next will be disenfranchisement of women.
They poison everything, yet women are to be responsible if a pregnancy goes wrong.
unitewomen.org/unite/
Unite, women, unite.
Oh and thanks for the post RC
Not only does this law sound terrible, but it opens the door for even more ridiculous laws down the road. Once state legislatures start allowing doctors to withold life-saving information on the basis of their personal “moral beliefs” then we are effectively justifying eugenics. What if the doctor thinks the “yolks should not be mixed?” He gets an inter-racial set of parents, and he realizes there is a high risk to the mother’s life and the baby if the pregnancy continues. He can just decide to let the mother and baby die to end that “mixed yolk” relationship. This kind of law creates a perverse incentive and puts far too much power in the hands of medical professionals by taking away the entire premise of their Hippocratic Oath.
The possibilities are endless, and the entire thinking behind this law is dangerous. Doctors should not be given a free pass to use their “personal moral judgments” in deciding what information to give the patient and what information to withold, and to allow procedures to go foreward or not based on their own personal beliefs.
This can be extended to life-saving procedures as well – the woman was a drug-user and got shot, and the “personal morality” of the ER surgeon guides him/her to withold life-saving treatment to let his idea of an “untouchable” die from the gunshot wound.
Isn’t the American health system broken enough, with a two-tier structure already (the haves get treatment, the have-nots don’t), without having to now introduce the element of physician subjective bias and morality into the equation? What if they don’t believe in homosexuality and decide to allow misdiagnosis or withold life-saving information to an individual based on their sexual orientation? Physicians could decide not to tell the gay guy that he has cancer in his prostate screening. Just because he is “against the man existing.” The principle this law is based upon is outright evil and criminal and it should be stricken down under whatever theory we can think of. Thanks for the diary to let us know about this!
Here in Pa we have the frack attack laws which if your Doctor suspects you’re harmed by fracking chemicals he can see the list of chemicals used only if he signs a nondisclosure to not reveal the suspected cause of the problem to his patient .
Such utter nonsense! It is nothing less than a double standard. If parents withhold medical treatment based on religious beliefs, they can be prosecuted but a doctor now cannot?
But there is no Republican war on women. No, not at all!
I least understand republican women, especially in the aggregate.
I think it’s a bipartisan war on women. Ds are just hiding it behind Rs skirts.
I have a feeling I’m going to shock you guys with this but these laws are already on the books in 9 other states, the first of which was Pennsylvania back in 1994 (under Democrat Bob “Catholic Church doctrine first until I needed a heart-liver transplant” Casey, Sr).
Quite agree. Unsure if the WAR Inc on women is part of the Shock Doctrine, but we are certainly seeing women under attack lately.
Agree with Kassandra: women need to get up & stand up for their rights, bc these bastards mean business! And they are out to take away as many rights as possible in order to oppress, repress, dominate & control more than 50% of the population. Not kidding, and neither are the 1%.
We, women, cannot, will, do it alone. This is a Human issue of Family Planning!
Read these sites for some medical doctor’s responses:
First, from this doctor who begins by saying “It’s time for a little old-fashioned civil disobedience. Here are a few steps we can take as physicians to protect our patients from legislation such as this.”
http://whatever.scalzi.com/2012/03/20/guest-post-a-doctor-on-transvaginal-ultrasounds/
and
<a href="http://whitecoatunderground.com/2012/03/22/lies-abortion-and-civil-disobedience-whats-the-right-course
and
http://bparsia.wordpress.com/2012/03/22/the-doctors-dilemma/
Finally, all men and women (of any age) should ask their doctors this: “If asked by a patient, would you refer the patient to a licensed gynecologist who preforms an abortion”. The answer is important to our culture.
Where are the Doctors resisting these horrific attacks not only on women, but on the Doctor’s ability to practice medicine ethically? Are they intimidated by the health insurance industry? Did the AMA sell them out so completely? Do we need the seal of “Good Medicine” before we select a Doctor who is not under the thumb of ALEC?
This kind of law creates a perverse incentive and puts far too much power in the hands of medical professionals by taking away the entire premise of their Hippocratic Oath.
Err, have you ever read the Hippocratic Oath?
I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.
I will give no deadly medicine to any one if asked, nor suggest any such counsel; similarly I will not give a woman a pessary to cause an abortion.
This is on its face discrimination and should not be allowed.
That said, the concept of medical liability is itself not a clear or easy public policy call. Countries like Germany live very well without it – they do not allow health care folks to be sued for mistakes in health care, deferring to the professional and licensing authorities for discipline, and seeing more public good in getting rid of the cost of defensive against high insurance premium additional medical procedures than they see in lawyers being the method wrongs are righted and medical procedures are forced to change.
Indeed as the Texas health liability reform has shown, the prior tiny cost of medical liability ins in terms of percentage of all health care costs is barely affected by drastic limitations on the rewards for winning such claims – only eliminating the right to sue cuts down costs – and it does this much more by the ending of defensive medicine than it does via the reduction to overall cost by eliminating medical liability insurance premiums from the system.
This will get to the Supreme Court, so I wonder how the conservative Supremos will handle it.
Will they go down the “freedom of speech” road to allow doctors and other medical personnel to just say what they believe should be said, and screw the patient’s need to know and right get straight, honest medical advice?
Will they make women a separate class — and not equal?
Gonna be interesting, but I sure would like to now have to even worry about such things. Ack.
I could be wrong but I think most physicians/med schools are using the Declaration of Geneva nowadays. Catholic med schools have replaced the original hippocratic oath with a modern one that doesn’t reference Greek gods and stuff and, I think some Jewish Med Schools use the prayer of Maimonides (possibly in addition to the declaration of Geneva) and the osteopathic oath.