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Dobb’s decision casts a shadow over with moth



The controversial abortion decision in the United States Supreme Court in June, which overturned the 50-year-old Roe vs. Wade ruling, ruling that there is no constitutional right to abortion in the United States, has led to a flurry of government responses that have created uncertainty for health care providers and medical malpractice insurers.

The ruling created many uncertainties that may ultimately need to be addressed by courts and state legislatures, and insurers must also respond.

While much of the focus on the impact of the ruling on medical providers has been on obstetricians and gynecologists, who have traditionally accounted for a significant share 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 a backdrop of a hardening medical malpractice market (see story here).

Writing the court̵

7;s 6-3 majority opinion in Dobbs vs. Jackson Women’s Health Organizationsaid Justice Samuel J. Alito Jr., “The Constitution does not refer to abortion, and no such right is implicitly protected by any constitutional provision.”

The ruling effectively shifted the decision on whether abortion is legal to state legislatures and sparked a series of legislative movements. Some states essentially ban abortions, some impose selective restrictions, and others continue to allow them (see map).

Experts say it could take years before the liability issues raised by the decision are resolved.

“It’s almost as big for doctors as it is for women,” said Robert E. White, CEO of Napa, Calif.-based TDC Group, which includes medical insurer The Doctors Co., pointing to the 50 years abortion has been permitted under federal law.

“It’s anyone’s guess” whether Dobbs the ruling’s impact on the number of medical malpractice cases, the litigation it will generate and the type of claim frequency and severity that will be associated with it, he said.

While Dobbs doesn’t directly affect the drug 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.”

Although activities deemed criminal under state law are not covered by medical policies, there is “much uncertainty on a state-by-state basis as to what can be provided” in coverage with respect to the legal review of medical procedures and changes in standards of care , she said.

The uncertainty requires a state-by-state analysis, for example, to determine which states do not allow exceptions for the life of the mother, Sullivan said.

“The uncertainty and concern this decision raises for our healthcare providers only increases the scrutiny of carriers and makes it a continued difficult product line to underwrite,”
She said.

“Physicians and facilities that provide care now have a tightrope to walk in states with restrictions,” said Rob Francis, Birmingham, Alabama-based vice president, health care professional liability, for medical insurer ProAssurance Corp. Doctors need to be aware of laws in the states where their patients live, he said.

States that limit access to abortion create new avenues for 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 problem.”

Questions remain about how some of the laws apply and the extent to which civil lawsuits will be filed to try to enforce some of them, he said. In Mississippi, for example, abortion is illegal except if the mother’s life is in danger or in cases of rape that have been reported to the police.

In anti-abortion states where protocols either haven’t been developed or aren’t followed, there are concerns related to transferring patients across state lines and follow-up treatment, said Chris Zuccarini, CEO of Risk Strategies Co. Inc.’s national healthcare practice in Radnor, Pennsylvania.

There’s also uncertainty about what to do in cases in anti-abortion states where a doctor doesn’t want to delay treating women in distress, such as ectopic pregnancy, Zuccarini said, pointing to the 1986 federal emergency Treatment and Labor Act that requires all who enter emergency departments must be stabilized and treated regardless of ability to pay.

“You can’t put off treatment because the situation could be catastrophic, and you’ve taken an oath to do what you can to help,” he said.

One of the uncertainties arising from Dobbs The decision is care for women who have had miscarriages or ectopic pregnancies and how those situations apply, Marshall said.

Mr White said that although there is no cover under medical insurance for criminal activity, a claimant may be able to pursue a negligence claim. “I don’t know that it’s going to have a big impact other than causing a lot of coverage questions for insurance companies,” he said.

There are also concerns about residents of anti-abortion states crossing state lines into a state where abortions are legal for the procedure, observers say.

Doctors need to be prepared for an influx of patients from other states with whom they have not had a previous relationship, and make sure there is proper follow-up care, Zuccarini said.

“It’s kind of hard to say that anti-abortion states are going to seek doctors in other states, but we just don’t know how aggressive those (anti-abortion) states are going to be,” Francis said.

Max G. Gaujean, a senior trial attorney at Benvenuto & Slattery in Roslyn, New York, who works exclusively with medical insurer EmPRO Insurance Co., said problems can arise, for example, if a woman from a state with abortion restrictions goes to Illinois , who has expansive access to abortion, for abortion-related services, then develops complications when she returns home. A doctor can have trouble providing care based on the vagueness of the law, with each state having its own criteria.

In anti-abortion states, in cases where medical decisions intended to save a mother’s life or to prevent serious bodily injury or disability are made, the questions in some cases will be who made the decision and whether it was the reason for an abortion. accomplished, Stinson said.

Until there are substantive court decisions clarifying what the limits are, doctors will have to use their best judgment, but it’s not certain how much protection they will have, he said.

Chad Follmer, Head of Healthcare at Woodruff Sawyer & Co. in San Francisco, said that “from a purely medical perspective” he knows of no insurer that would exclude a claim, for example, from a California doctor who works on Texas patients if the doctor is licensed in Texas.

But practicing medicine in states where the doctor is not licensed will “absolutely” create a problem “and Dobbs has nothing to do with it, he says.

Medical policies could cover defense costs if state licensing boards in anti-abortion states go after doctors’ licenses, experts say.

Meanwhile, most insurance companies are “currently silent” on the abortion issue, Follmer said.

“They’re trying to get their arms around it” and don’t want to “get out of the gutter” and say they’re ruling everything out Dobbs related, he said. Everyone is “kind of waiting for someone else to blink”.


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