Graphic courtesy of ACLU Virginia
Among the new restrictions appearing in anti-choice 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.
In both Kansas and Arizona measures are advancing 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’s Syndrome. In that case the parents argued that the medical professionals were negligent in conducting the genetic testing, and that 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 none of these malpractice shield has been signed into law in Kansas, Arizona, or Georgia. But assuming they do, the impact on medical malpractice law and on the ability of women to be 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 a comparison of the care delivered in the specific case at hand. Expert testimony is almost always required from other medical professionals 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 without 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, because all health care professionals will 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.
Follow Jessica Mason Pieklo on Twitter, @hegemommy