Malpractice lawsuits over denied abortion care could be on the horizon

One year after the Roe v. Wade overthrowmany doctors and hospitals in states that have restricted abortion refuse to terminate pregnancies of women facing health-threatening complications for fear of criminal prosecution or loss of their medical license.

Some experts predict that these providers could soon face a new legal threat: medical malpractice lawsuits alleging they harmed patients by failing to provide necessary and timely abortion care.

“We will absolutely see medical malpractice cases emerge,” said Diana Nordlund, an emergency physician in Grand Rapids, Michigan, and former malpractice defense attorney, who chairs the American College of Emergency’s medico-legal committee. Physicians. When doctors decide not to provide widely accepted treatments as the standard of care because of these new laws, “it is perceived as substandard care and liability is increased.”

For some doctors and malpractice attorneys, the question is when — not whether — a pregnant patient will die from lack of care and set the stage for a big-dollar wrongful death claim. Abortion-rights supporters said such a case could put pressure on doctors and hospitals to provide proper abortion care, offsetting their fears of violating state abortion bans. state, many of which are calling for criminal prosecution and revocation of medical licenses as punishment for the violations.

“If we’re going to encourage appropriate care, there has to be some kind of counter risk for doctors and hospitals refusing to provide care that should be legal,” said Greer Donley, associate professor at the University of Washington Law School. the University of Pittsburgh. studies the impact of abortion bans. “But most rational people would be more afraid to go to jail.”

Some proponents of the abortion ban have said they would welcome malpractice suits. Providers refuse to use exceptions in some state laws that allow them to perform abortions to save a patient’s life or health, they said.

“It could help achieve our goal if it clarified that the law did not contradict standard medical practice,” said John Seago, president of Texas Right to Life, referring to the state’s abortion ban. .

A new KFF poll found that 59% of ob-gyn in abortion-restricted states, and 61% of those in abortion-banned states, are somewhat or very concerned about their legal risk when ‘they make decisions about the need for an abortion.

Some attorneys are considering lawsuits on behalf of women they believe have been harmed by a state abortion ban. A lawyer for Mylissa Farmer, a Missouri woman who was denied an abortion at two hospitals in August after her waters broke about 18 weeks into her pregnancy, says she may sue in malpractice justice. Missouri’s abortion ban, which went into effect last year, makes an exception for medical emergencies.

The federal government recently found that the two hospitals violated a federal emergency care law by denying Farmer an abortion, which experts say could bolster a malpractice claim. One of the hospitals, Freeman Health System in Joplin, Missouri, did not respond to a request for comment. The other, the University of Kansas Health System in Kansas City, said the care provided “has been reviewed by the hospital and found to be consistent with hospital policy,” according to a spokeswoman, Jill Chadwick.

Farmer “suffered permanent physical and emotional damage,” said Michelle Banker, one of her attorneys at the National Women’s Law Center, who added that Farmer and her attorneys are “considering all of our legal options.”

News reports and medical studies show that some women with pregnancy complications have suffered serious health consequences when doctors and hospitals failed to provide routine abortion care.

Last month, researchers published a study identifying dozens of cases in 14 states in which doctors said deficiencies in care due to abortion restrictions led to preventable complications and hospitalizations, with some patients nearly dying. .

“Patients were sent home and told to come back when they showed signs of infection,” said Daniel Grossman, an obstetrician-gynecologist at the University of California, San Francisco, who led the study. “Many have developed serious infections. And it’s clear that many of these cases were very emotionally traumatic.

He said that although researchers did not track patient outcomes, lack of timely abortion care in such cases could lead to serious health issues, including loss of fertility, stroke or a heart attack.

“It’s only a matter of time before a death is revealed,” Grossman said.

Yet given the conflict for doctors between medical ethics and personal risk, some stakeholders said patients might be reluctant to sue doctors and juries might be reluctant to find them liable.

“It’s a terrible position that providers are placed in, and I don’t think juries will blame the doctor unless it’s a very clear case,” said Morgan Murphy, attorney for a malpractice plaintiff. in Missouri.

She said her company would not pursue malpractice cases based on abortion refusals except in “pretty extreme” situations, such as the death of a patient. “Unless a mother is on her deathbed, it’s pretty hard to blame a provider who thinks that if they provide treatment they will be criminally liable or lose their medical license.”

Another hurdle for malpractice cases is that state abortion bans could undermine the argument that abortion is the legal “standard of care,” meaning it is a widely accepted and prescribed treatment for pregnancy complications such as miscarriages and fatal fetal abnormalities.

“I absolutely see a violation of the standard of care in these cases,” said Maria A. Phillis, OB-GYN and former Cleveland attorney. “But if someone is tried in a malpractice case, it will come down to a battle of medical experts over whether that’s no longer the standard of care, and the jury will have to decide.”

An additional justification for doctors not to offer abortions is that medical liability insurers generally do not cover damages resulting from criminal acts, which “puts the finger on the scales even more for doing nothing”, a said Phillis.

Stuart Grossman, a prominent attorney for malpractice plaintiffs in Florida, said he would be eager to take on an abortion refusal case in which the woman suffered from serious health or emotional issues.

Unlike other abortion-banning states, Florida does not limit the amount of damages for pain and suffering in malpractice cases, making lawsuits there more financially viable.

Grossman cited the case of Deborah Dorbert, a Florida woman who was allegedly denied an abortion despite being told by her doctors at 24 weeks pregnant that her fetus, with no kidneys and underdeveloped lungs, was suffering from a fatal disease. called Potter’s syndrome.

Her doctors and the hospital refused to terminate the pregnancy even though the state abortion ban provides an exception for fatal fetal abnormalities. Months later, her baby died in her parents’ arms shortly after birth.

“You can see how devastated she was mentally,” Grossman said. “She has a wrongful death case that I’ll take in a minute.” He said the couple could file a malpractice lawsuit for Dorbert’s physical and emotional damage and a separate malpractice and wrongful death lawsuit for the couple’s suffering from the child’s death.

Failure to counsel patients about their options and connect them with providers willing to terminate a pregnancy is also possible grounds for a malpractice suit, the attorneys said. Katie Watson, an associate professor at Northwestern University’s Feinberg School of Medicine who has studied state abortion bans, said counseling and guidance is not prohibited under those laws and doctors have an ethical obligation to provide these services.

“I think breaching the duty to advise would be a strong malpractice suit,” she said.

Nancy Davis said she received no counseling or guidance support last July after her doctors at Woman’s Hospital in Baton Rouge, Louisiana told her, 10 weeks into her pregnancy, that her fetus would not survive as she was missing the top of her skull, a fatal condition. called acrania. She said they recommended that she terminate the pregnancy and she agreed.

Davis said her doctors then told her a hospital executive denied permission for the procedure because of Louisiana’s abortion ban, even though the law provides an exception for fetal abnormalities. deadly. A hospital spokesperson declined to comment.

Davis, who has three children, contacted Planned Parenthood of Greater New York, which arranged childcare and a flight to New York. She had an abortion there in September.

“The whole situation has been mentally and physically exhausting, and my family and I are getting counseling,” Davis said. “I am still very angry with the hospital and the doctors. I feel like I’m owed compensation for the trauma and grief.”

She sought advice from Benjamin Crump, a prominent attorney known for pursuing high-profile cases such as wrongful death lawsuits on behalf of the families of Trayvon Martin and George Floyd.

But Crump said that after researching Davis’ legal options, he decided a judge would likely dismiss a malpractice suit and that Davis could end up paying the defendants’ costs and legal fees.

“The doctor’s lawyers will say, ‘You can’t expect my client to break the law and go to jail for up to 25 years,'” Crump said. “Unless you change the law, she has no opportunity to receive compensation.”

KFF Health Newsformerly known as Kaiser Health News (KHN), is a national newsroom that produces in-depth journalism on health issues and is one of the main operating programs of KFF — the independent source for health policy research, polling and journalism.

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