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Supreme Court abortion ruling complicates medical malpractice insurance environment

Dobbs decision

MIAMI — Medical professionals and their insurers face an evolving medical liability landscape following the U.S. Supreme Court abortion decision last year, but captives may be able to help organizations handle the risks, an attorney, a risk manager and an underwriter said.

The June 24, 2022, ruling in Dobbs v. Jackson Women’s Health Organization — which overturned the 50-year-old Roe v. Wade decision and held there is no constitutional right to an abortion in the United States — can potentially create criminal liability in cases that previously would have been considered medical negligence, creating some gray areas in medical malpractice coverage, they said.

Health care providers who don’t routinely perform abortions, such as emergency room physicians, could face medical malpractice suits if they perform the procedure for other medical reasons in states where abortion is banned, they said during a panel session last month at the World Captive Forum, which is sponsored by Business Insurance.

The Dobbs decision raises questions not only about medical malpractice liability but also about professional criminality, said Lainie Dornecker, Miami-based head of health care at Bowhead Specialty Underwriters Inc.

“These doctors can be subject to scenarios where they may be subject to jail time,” she said.

“We are talking about the criminalization of medicine and the criminalization of abortion in this country,” said Lori Semlies, New York-based attorney at law, Wilson Elser Moskowitz Edelman & Dicker LLP.

Changing legal and risk landscape

Federal statutes are subject to interpretation, which creates uncertainty and makes it difficult to assess the risk of medical liability, Ms. Semlies said.

In its 1973 Roe v. Wade ruling, the U.S. Supreme Court held that a woman could have an abortion up to 24 to 28 weeks, when a fetus becomes viable, Ms. Semlies said. Viability is subject to interpretation, she said.

After Dobbs, the issue will be decided under state laws, which are evolving and creating further uncertainty, she said. Some states have a complete abortion ban, some ban abortion after a specified point in the pregnancy, and others require a waiting period, she said.

Some federal laws, though, may still apply to abortion. Under the federal Emergency Medical Treatment and Active Labor Act, hospitals cannot refuse to provide medical care unless patients are deemed stable and must screen patients who are experiencing an emergency medical condition, she said.

Guidance issued by the U.S. Department of Health and Human Services has provided some assurance to health care providers in emergency settings that they can put a mother’s life first, but EMTALA “is a defense, not an immunity,” Ms. Semlies said.

Any medical professional who interacts with pregnant mothers is potentially exposed, said Eric J. Gardzina, Nashville, Tennessee-based senior vice president, risk management, at Ob Hospitalist Group, which employs more than 1,300 obstetrician-gynecologists in 37 states under 250 hospital contracts.

OB-GYNS, emergency department physicians and pharmacists are clearly at risk, but other medical professionals such as technicians, in vitro fertilization providers, oncologists, facilitators and vendors could also be exposed, he said.

Insurance responds

Medical malpractice underwriters have always considered how a risk may look depending on the state where the risk is based, Ms. Dornecker said.

This doesn’t change the underwriting process or create a new level of risk, she said. “We’re always ready to speak to different risks,” she said.

When a situation arises, how a facility manages the aftermath when a lawsuit and criminal action are brought is a key underwriting question, she said.

Policy language may be ambiguous under certain circumstances, Ms. Dornecker said. While criminal acts are excluded for med mal coverage, some policies may cover seizures of documents or sublimit cover for defense of a criminal action or defense of a licensing procedure, she said. “We are seeing affirmative exclusions, and we’re also seeing affirmative enhancements coming out,” she said.

Captive insurers can provide certainty to employees by offering greater flexibility in policy design and claims control for an organization, the panelists said.

By using a captive, organizations have the flexibility to design programs that fit their needs, Mr. Gardzina said.

Captives may provide more robust coverage, such as full limits for defense of disciplinary/regulatory proceedings and broader coverage for fines and penalties, for example.

Managing risk

Organizations should communicate changes in state laws to their employees on a regular basis so they feel supported and understand what they can or can’t do, Mr. Gardzina said.

Ob Hospitalist Group decided to defend its employees through the process, with “corporate dollars or whatever it takes,” he said.

Employers also need to be concerned about the emotional toll navigating varied state restrictions will take on their employees, especially for medical professionals who practice in more than one state, Mr. Gardzina said. Aside from malpractice problems, there’s a concern that some employees may decide to leave the profession, he said.

Loss of license is another concern. “Our focus is to tell them to practice medicine, to make sure they use their medical decision-making process which they have and then just document the heck out of it,” he said.

The panel was moderated by Gavin Souter, editor of Business Insurance.