Dobbs decision casts shadow on med malPosted On: Oct. 5, 2022 1:00 AM CST
The controversial U.S. Supreme Court abortion decision in June, which overturned the 50-year-old Roe vs. Wade ruling and held there is no constitutional right to an abortion in the United States, has led to a panoply of state responses that has created uncertainty for medical providers and medical malpractice insurers.
The ruling created numerous ambiguities that may ultimately have to be addressed by courts and state legislatures, and underwriters will also have to respond.
While much of the focus on the effects of the ruling on medical providers has been on obstetricians and gynecologists, who have traditionally accounted for a significant percentage of medical malpractice claims, there is also some concern about its impact on fertility clinics, among others (see story here).
The decision also came against the backdrop of a hardening medical malpractice market (see story here).
Writing the court’s 6-3 majority opinion in Dobbs vs. Jackson Women’s Health Organization, Justice Samuel J. Alito Jr. said, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
The ruling effectively moved the decision on whether abortion is legal to state legislatures and triggered a range of legislative moves. Some states are essentially banning abortions, some are imposing selective restrictions, and others are continuing to permit them (see map).
Experts say it may take years before the liability issues raised by the decision are settled.
“It’s almost as much of a gut punch for physicians as it is to women,” said Robert E. White, president of Napa, California-based TDC Group, which includes med mal insurer The Doctors Co., pointing to the 50 years that abortions have been permitted under federal law.
“It’s anyone’s guess” as to the Dobbs ruling’s impact on medical malpractice rates, the litigation it will generate, and what kind of claim frequency and severity will be associated with it, he said.
While Dobbs does not directly affect the med mal market, it creates many potential concerns for it, including legal uncertainties, said Paula Sullivan, Chicago-based senior vice president at Marsh LLC. “Basically, it exacerbates an already challenging market.”
While activity considered criminal under state law is not covered under med mal policies, there is “a lot of uncertainty on a state-by-state basis in terms of what can be provided” in coverage with respect to the legal scrutiny around medical procedures and changes in standards of care, she said.
The uncertainty requires a state-by-state analysis, for instance, to determine which states do not allow for exceptions for the life of the mother, Ms. Sullivan said.
“The uncertainty and the concern that this decision raises for our health care providers just further increases the scrutiny of carriers and makes it a continued difficult product line to underwrite,”
“Physicians and facilities that deliver care now have a tightrope to walk in states with restrictions,” said Rob Francis, Birmingham, Alabama-based executive vice president, health care professional liability, for med mal insurer ProAssurance Corp. Physicians must be aware of the law in the states where their patients reside, he said.
States that restrict access to abortion are creating new avenues to file civil lawsuits, said Mike Stinson, vice president, public policy and legal affairs, for the Rockville, Maryland-based Medical Professional Liability Association. The issue has “obviously opened up a new level of risk that is a concern.”
Questions remain about how some of the laws apply and the degree to which civil lawsuits will be filed to try to enforce some of them, he said. In Mississippi, for instance, abortion is illegal except if the mother’s life is in danger or in cases of rape that have been reported to law enforcement.
In anti-abortion states where protocols have either not been developed or are not being followed, there are concerns related to the transfer of patients across state lines and follow-up treatment, said Chris Zuccarini, managing director of Risk Strategies Co. Inc.’s national health care practice in Radnor, Pennsylvania.
There is also ambiguity about what to do in cases in anti-abortion states in which a physician does not want to delay treatment of women in distress, such as in cases of an ectopic pregnancy, Mr. Zuccarini said, pointing to the federal 1986 Emergency Treatment and Labor Act, which requires anyone coming into emergency departments to be stabilized and treated regardless of ability to pay.
“You can’t delay treatment because the situation could become catastrophic, and you’ve taken an oath to do what you can to help,” he said.
One of the uncertainties emerging from the Dobbs decision is care for women who have had miscarriages or ectopic pregnancies and how those situations apply, Ms. Marshall said.
Mr. White said that while there is no coverage under med mal insurance for criminal activity, a plaintiff might be able to pursue a negligence claim. “I don’t know that it’s going to have a lot of impact other than causing a lot of coverage questions for insurance companies,” he said.
There is also concern about residents in anti-abortion states crossing state lines to a state where abortions are legal for the procedure, observers say.
Physicians must be prepared for an influx of patients from other states with whom they have not had a previous relationship, and ensure there is proper follow-up care, Mr. Zuccarini said.
“It’s a bit of stretch to say antiabortion states will pursue physicians in other states, but we just don’t know how aggressive these (anti-abortion) states are going to be,” Mr. Francis said.
Max G. Gaujean, a senior trial attorney with Benvenuto & Slattery in Roslyn, New York, which works exclusively with med mal insurer EmPRO Insurance Co., said issues may arise, for instance, if a woman from a state with limits on abortion goes to Illinois, which has expansive abortion access, for abortion-related services, then develops complications upon her return home. A doctor may face trouble providing care based on the ambiguity of the law, with each state having its own criteria.
In anti-abortion states, in cases in which medical decisions intended to save a mother’s life or to prevent severe bodily injury or impairment are made, the questions in some instances will be who is making the decision and whether that was the reason an abortion was conducted, Mr. Stinson said.
Until there are substantive court decisions clarifying what the limits are, physicians must use their best judgment, but it is not certain how much protection they will have, he said.
Chad Follmer, health care practice leader at Woodruff Sawyer & Co. in San Francisco, said that “from a purely med mal” perspective, he doesn’t know of any insurer that would exclude a claim, for instance, from a California doctor working on Texas patients if the physician is licensed in Texas.
But practicing medicine in states where the physician has no license, will “absolutely” create a problem “and Dobbs has nothing to do with that,” he said.
Med mal policies may cover defense costs if state licensing boards in anti-abortion states go after physician’s licenses, experts say.
Meanwhile, most insurers “currently are remaining silent” on the abortion issue, Mr. Follmer said.
“They’re trying to get their arms around it” and do not “want to come out of the chute” and say they are excluding everything Dobbs-related, he said. Everyone is “kind of waiting for someone else to blink.”