How Providers Can Manage Medical Malpractice Risk in a Post-Roe World: Risk and Insurance

Providers likely have many questions about how to proceed in the wake of Roe v. Wade.

In the months following the Supreme Court’s overturning Roe vs. Wade with the Decision Dobbs v. Jackson Women’s Health Organizationmedical providers felt a wave of uncertainty.

In states that have enacted abortion bans, there are concerns that providers may be cautious about engaging in treatments that could be construed as abortion for fear of criminal prosecution.

Laws providing exceptions to save the mother’s life do not always clearly define under what circumstances an abortion would be legally permitted, and there is not much precedent for providers since the prohibitions have not yet been tested by courts.

“Because this post-Dobbs world is really new, there has been no significant legal precedent so far,” said Katie Theodorakis, regional head of risk management at ProAssurance. “It’s this uncertainty that is really causing the angst among suppliers. It is difficult to give definitive answers.

Adding to this already precarious environment is the fact that the language of abortion bans differs from state to state. The Texas ban allows private citizens to sue anyone they suspect of helping a mother get an abortion after six weeks. Under Alabama’s ban, providers could face up to 99 years in prison for performing an abortion that does not fall under one of the permitted exceptions – such as ectopic pregnancy, fatal fetal abnormalities or to prevent serious risk to health or death. to the mother.

“It is unfortunately a patchwork of laws, both between states and sometimes even within the same state,” said Allison Adams, attorney at the law firm Starnes Davis Florie, LLP. “Small wording differences in a law can have a very different meaning in how the law is interpreted and applied to a given situation.”

As healthcare professionals try to navigate this ever-changing environment, it will be important for them to consult with lawyers, risk managers and insurers to ensure they understand the potential for medical malpractice lawsuits. while striving to comply with these new criminal laws.

Medical Professional Liability vs Criminal Risks

Katie Theodorakis, Regional Head of Risk Management at ProAssurance

One of the most common conundrums suppliers may face as a result of the Dobbs decision is to postpone an aborted procedure and potentially face a medical malpractice lawsuit or to continue the procedure and potentially face criminal charges. A provider, for example, may be hesitant to treat a miscarriage early in the process since the dilation and curettage procedure used to treat an incomplete miscarriage is also used in abortions.

“Health care providers feel pressure to weigh potential criminal ramifications against how they would treat a patient in the moment,” Adams said. “As difficult as it may seem given recent media coverage of abortion bans, physicians should focus on their role as physicians, not legal analysts. They should direct their efforts toward making reasonable and appropriate medical decisions based on the patient currently in front of them.

Recent media coverage has focused on some extreme reports of pregnancy care being delayed or denied for fear of criminal prosecution. The Washington Post reported that a hospital in Kansas City, Missouri, needed “pharmacist approval” before drugs that stop postpartum hemorrhage could be dispensed, as the drugs are also used in abortions.

And, according to PBS NewsHour, a Texas doctor reported that the hospital he worked for recommended not treating ectopic pregnancies until they ruptured. Ectopic pregnancies occur when a fertilized egg implants outside the uterus and they are never viable and life threatening.

While it is important for providers to be aware of these reports, it is equally important to understand that unnecessary delays in necessary care can also have legal ramifications.

“There can be a delay in treatment or a failure of treatment that could harm a patient. And then, of course, a medical malpractice lawsuit could arise out of that,” Theodorakis said.

This is true both in emergency situations and in routine prescription care. Some providers have expressed concern about prescribing certain drugs commonly used to treat conditions such as lupus, rheumatoid arthritis, or cancer to women of childbearing age because these drugs can also be used as abortifacients.

“Providers are concerned that their prescribing practices will be monitored or that pharmacies won’t fill prescriptions for drugs that could have abortifacient effects,” Adams said. “In some situations, these fears are valid. But hopefully, as providers, prosecutors, and the public become more familiar with the actual application of each state’s law, those fears will ease.

Document, document, document

Allison Adams, attorney at the law firm Starnes Davis Florie, LLP

When it comes to reducing risk, both from a criminal liability and medical malpractice perspective, providers have some very important tools in their toolbox – documentation and informed consent.

By obtaining informed consent, doctors obtain the patient’s permission to administer the treatment and confirm that the risks associated with the treatment or lack thereof have been explained.

“Often doctors will write ‘risks/benefits discussed’ in the medical record and leave it at that. But you really want to be as detailed as possible when documenting consent in these situations,” Theodorakis said.

Additionally, documenting the medical decision-making used to select a certain procedure or detailing why a certain prescription is medically indicated can provide protection if the provider’s actions are later questioned. Complete documentation can help demonstrate the lack of intent to perform an illegal abortion and can substantiate how the provider’s actions fall within an exception to their state’s abortion law. For example, documentation may show potential prosecutors that doctors were acting in an emergency to protect the mother’s life, which is a common exception in many states that ban abortion.

Adams recommended that providers try to use phrases included in their particular state’s law. If state law contains terms such as “reasonable medical judgment,” “medically necessary,” “imminent harm,” or “life of the mother,” providers must use those exact terms in their medical records, as appropriate. . This can help reduce their risk by showing that their actions were within the law of their state.

“Using the language of your own state’s law in your documentation — whenever possible — is an added layer of protection,” Adams said.

The fundamentals of thorough informed consent and documentation have been used by providers for decades as a way to demonstrate the appropriateness of their medical actions.

“These are risk management principles that we’ve been preaching for years,” Theodorakis said. “But now suppliers need to be even more vigilant.”

When in doubt, providers should continue to exercise their medical judgment, rather than trying to guess what legislatures meant when crafting a particular phrase in a statute.

“The bottom line is that providers follow their education, training and experience. They can operate in a new [legal] world right now, but their training, education, and basis for their medical judgments should remain the same,” Adams said.

If in doubt, seek advice from an expert

Theodorakis stressed the importance for providers to consult with lawyers and risk managers before any possible case to see what steps they should take to help avoid criminal and civil lawsuits.

“It’s critical that providers educate themselves about risk and risk mitigation now, before they are faced with a case or crisis. Now is not the time to try to find information,” Theodorakis said.

ProAssurance’s risk management team is available to help providers and hospital administrators navigate these uncharted waters. Their Risk Management Helpline allows policyholders to receive risk consultation services.

Their team partners with Starnes Davis Florie, LLP to ensure that they provide clients with the best possible risk management support in cases where medical occupational hazards may arise.

“We listen to their concerns, we listen to their frustrations and we try to reassure them to the best of our abilities,” Theodorakis said. “We advise them on the best way to protect themselves.”

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with ProAssurance. The editorial staff of Risk & Insurance played no role in its preparation.

ProAssurance companies offer comprehensive medical malpractice insurance solutions for health risks of all sizes and types. ProAssurance Group’s rating is AM Best A (Excellent).

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