A year after the overturning of Roe v. Wade, many physicians and hospitals in states that reportedly ban abortion are refusing to terminate pregnancies of women experiencing health complications for fear of criminal prosecution. may face fines or the loss of their medical license. ,
Some experts predict those providers may soon face a new legal threat: medical malpractice lawsuits alleging they harmed patients by failing to provide timely, needed abortion care.
“We will definitely see more medical malpractice cases,” said Diana Nordlund, an emergency physician in Grand Rapids, Michigan, and former malpractice defense attorney who chairs the American College of Emergency Physicians’ medical-legal committee. When physicians decide not to provide a treatment widely accepted as the standard of care because of these new laws, “it is considered substandard care and civil liability increases.”
For some physicians and malpractice lawyers, the question is when — not when — a pregnant patient will die from lack of care and sets the stage for a big-dollar wrongful death claim. Abortion rights advocates said such a case could put pressure on doctors and hospitals to provide proper abortion care, balancing their fear of violating state abortion restrictions, many of which are punishable for violations. In the form of criminal prosecution and cancellation of medical license.
Greer Donnelly, associate professor at the University of Pittsburgh School of Law, said, “If we want to encourage reasonable care, physicians and hospitals have to have some sort of counter-risk for refusing to provide care that should be legal.” Needed.” Studies the impact of abortion restrictions. “But most rational people would be more afraid of going to jail.”
Some supporters of abortion bans said they would welcome malpractice lawsuits. That said, providers are refusing to use exceptions in some state laws that allow them to perform abortions to save a patient’s life or health.
John Seago, president of Texas Right to Life, said, “It can help us achieve our goal if it makes clear that the law does not contradict standard medical practice,” referring to the state’s abortion ban.
A new KFF survey found that 59% of OB-GYNs practicing in states with gestational limits on abortion, and 61% in states with restrictions, are somewhat aware of their legal risk when deciding whether they need an abortion. Even or very worried.
Some lawyers are exploring lawsuits on behalf of women who they say have been harmed by state abortion bans. A lawyer for Melissa Farmer, a Missouri woman who was denied an abortion at two hospitals in August because her waters broke around 18 weeks into her pregnancy, said she could sue for malpractice Is. Missouri’s abortion ban, which took effect last year, makes exceptions for medical emergencies.
The federal government recently found that both hospitals violated federal emergency care law by denying Farmer an abortion, which experts say could strengthen a malpractice claim. One of the hospitals, Freeman Health System in Joplin, Missouri, did not respond to a request for comment. Second, the University of Kansas Health System in Kansas City said, according to spokeswoman Jill Chadwick, the care provided was “reviewed by the hospital and found to be in accordance with hospital policy.”
“Farmer has experienced permanent physical and emotional damage,” said Michelle Banker, one of her attorneys at the National Women’s Law Center. He said the farmers and their lawyers are “exploring all of our legal options.”
News reports and medical studies suggest that some women with pregnancy complications have suffered serious health consequences when doctors and hospitals did not provide routine abortion care.
Last month, researchers released a study identifying dozens of cases in 14 states in which physicians said lack of care due to abortion restrictions led to preventable complications and hospitalizations, with some patients nearly dying. Were.
“Patients were sent home and told to come back if they showed signs of infection,” said Daniel Grossman, an obstetrician and gynecologist at the University of California-San Francisco who led the study. “Many people got serious infections. And it’s clear that many of these cases were very emotionally traumatic.”
They said that although the researchers did not track patient outcomes, the lack of timely abortion care in such cases could result in serious health harms, including loss of fertility, stroke or heart attack.
Grossman said, “It was just a matter of time before a death would emerge.”
Nevertheless, considering the conflict between medical ethics and personal risk to doctors, some stakeholders said that patients may be reluctant to sue doctors and that juries may shy away from holding them liable.
Morgan Murphy, an attorney for malpractice plaintiffs in Missouri, said, “It’s a terrible situation providers are being put in, and I don’t think the jury will blame the doctor unless it’s a super clear case.”
He said his company would not pursue malpractice cases based on denial of abortions, except in “very serious” situations, such as when a patient dies. “Unless a mother is on her death bed, it is very hard to blame a provider who thinks they will be criminally liable or lose their medical license if they provide treatment.”
Another obstacle in malpractice cases is that state abortion restrictions can undermine the argument that abortion is the legal “standard of care,” meaning it is widely accepted for pregnancy complications such as miscarriage and fatal fetal abnormalities. and prescribed treatment.
“I see a violation of the standard of care in these cases,” said Maria A. Phillis, an OB-GYN and former attorney in Cleveland. “But if a malpractice case goes to trial, it will turn into a battle of medical experts over whether this is no longer the standard of care, and the jury will have to decide.”
An additional justification for physicians not performing abortions is that medical liability insurers generally do not cover damages resulting from criminal acts, Phillis said, which “tips the scales even more to do nothing.” Is.
Stuart Grossman, a lawyer for a prominent malpractice plaintiff in Florida, said he would be eager to take on an abortion-denial case in which the woman suffered serious health or emotional injuries.
Unlike other states that ban abortion, Florida does not limit the amount of damages for pain and suffering in malpractice cases, making suing there more economically viable.
Grossman cited the case of Deborah Dorbert, a Florida woman who was allegedly denied an abortion at 24 weeks pregnant despite being told by her physicians that her fetus had no kidneys and underdeveloped lungs. , who suffers from a fatal condition called Potter syndrome.
Her doctors and hospital refused to terminate the pregnancy, even though the state’s abortion ban has an exception for fatal fetal abnormalities. Months later, her child died in his parents’ arms shortly after birth.
“You can see how mentally devastated she is,” Grossman said. “He has a wrongful death case that I’ll take on in a minute.” She said the couple could file a malpractice suit for Dorbert’s physical and emotional damages and a separate malpractice and wrongful death lawsuit for the couple’s suffering over the infant’s death.
Lawyers said that failing to counsel patients about their options and connect them with providers willing to terminate a pregnancy could also be a potential basis for a malpractice lawsuit. Katie Watson, associate professor at Northwestern University’s Feinberg School of Medicine, who has studied state abortion restrictions, said counseling and referrals are not prohibited under these laws and that physicians have an ethical obligation to offer those services.
“I think that breach of duty to consult would make for a strong malpractice suit,” she said.
Nancy Davis said she received no counseling or referral help last July when doctors at Woman’s Hospital in Baton Rouge, Louisiana, told her at 10 weeks pregnant that her fetus would not survive because the top of its skull was missing , which is a fatal situation. called Acrania. She said that he recommended that she terminate the pregnancy and she agreed.
Davis said that her doctors then told her that a hospital executive had refused to allow the procedure because of Louisiana’s abortion ban, even though the law contains an exception for fatal fetal abnormalities. A hospital spokesperson declined to comment.
Davis, who has three children, contacted Planned Parenthood of Greater New York, which arranged child care and a flight to New York City. There she had an abortion in September.
“The whole situation has been mentally and physically exhausting, and my family and I are receiving counseling,” Davis said. “I am still very angry at the hospital and the doctors. I feel like I should be compensated for the trauma and heartbreak.”
He sought the advice of Benjamin Crump, a prominent attorney known for pursuing high-profile cases such as the wrongful death lawsuits on behalf of the families of Trayvon Martin and George Floyd.
But Crump said that after studying Davis’ legal options, he decided that a judge would likely dismiss the malpractice suit and that Davis could pay the defendants’ legal fees and costs.
“The doctor’s attorneys will say, ‘You can’t expect my client to break the law and go to jail for 25 years,’” Crump said. “Unless you change the law, there is no way to get compensation for that.”
KFF Health Newsformerly known as Kaiser Health News (KHN), is a national newsroom that does in-depth journalism about health issues and is one of the main operating programs kff – Independent source for health policy research, polling and journalism.
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