MIAMI – Doctors and their insurers face an expanding medical liability landscape after the U.S. Supreme Court’s abortion ruling last year, but prisoners may be able to help organizations manage the risks, a lawyer, a risk manager and an insurer said.
Judgment on 24 June 2022 Dobbs v. Jackson Women’s Health Organization — which toppled the 50-year-old Roe v. Wade decision and held that there is no constitutional right to abortion in the United States — could 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 do not routinely perform abortions, such as emergency room doctors, could face medical malpractice charges if they perform the procedure for other medical reasons in states where abortion is prohibited, they said during a panel session last week at the World Captive Forum, which is sponsored by Business insurance.
The Dobbs The decision raises questions not only about medical malpractice liability but also about professional criminality, said Lainie Dornecker, Miami-based director of health care at Bowhead Specialty Underwriters Inc.
“These doctors could be subject to scenarios where they could be subject to jail time,”; she said.
“We’re talking about the criminalization of medicine and the criminalization of abortion in this country,” said Lori Semlies, New York-based attorney, Wilson Elser Moskowitz Edelman & Dicker LLP.
Changing legal and risk landscape
Federal laws are subject to interpretation, which creates uncertainty and makes it difficult to assess the risk of medical liability, Semlies said.
In its 1973 Roe v. Wade Under the U.S. Supreme Court ruling, a woman could have an abortion up to 24 to 28 weeks, when a fetus becomes viable, 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 ban on abortion, some prohibit abortion after a certain point in pregnancy, and others require a waiting period, she said.
However, some federal laws may still apply to abortion. Under the federal Emergency Medical Treatment and Active Labor Act, hospitals cannot refuse to provide medical care and must screen patients experiencing an emergency medical condition, she said.
Guidelines issued by the U.S. Department of Health and Human Services have given some assurance to emergency care providers that they can put a mother’s life first, but EMTALA “is a defense, not an immunity,” Semlies said.
Any physician who interacts with expectant mothers is potentially at risk, said Eric J. Gardzina, Nashville, Tenn.-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 room physicians and pharmacists are clearly at risk, but other medical professionals such as technicians, IVF providers, oncologists, facilitators and salespeople can also be exposed, he said.
The insurance responds
Medical malpractice insurers have always considered what a risk might look like depending on the state where the risk is based, Dornecker said.
This does not change the issuance process or create a new level of risk, she said. “We are always ready to talk about different risks,” she said.
When a situation arises, how a facility handles the aftermath when a lawsuit and criminal charges are filed is an important insurance issue, she said.
Policy language can be ambiguous in some circumstances, Dornecker said. While criminal actions are excluded for medical coverage, some policies may cover seizure of documents or sublimit coverage for the defense of a criminal action or the defense of a licensing proceeding, she said. “We’re seeing affirmative exclusions, and we’re also seeing affirmative improvements coming out,” she said.
Captive insurers can provide security 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, Gardzina said.
Captives can provide more robust coverage, such as full limits for the defense of disciplinary/regulatory proceedings and broader coverage for fines and penalties, for example.
Organizations should communicate changes in state laws to their employees regularly so they feel supported and understand what they can and cannot do, Gardzina said.
Ob Hospitalist Group decided to defend its employees through the process, with “corporate dollars or whatever it takes,” he said.
Employers must also be concerned about the emotional toll that navigating various state restrictions will take on their employees, especially for physicians who work in more than one state, Mr. Gardzina. Aside from malpractice concerns, there is a concern that some employees may decide to leave the profession, he said.
Loss of license is another problem. “Our focus is to tell them to practice medicine, to make sure they use their medical decision-making process that they have and then just document how it goes,” he said.
The panel was moderated by Gavin Souter, editor of Business insurance.