US Supreme Court decision to overturn Roe v. Wade has been in place for less than a year and already it is clear that the liability environment for medical professionals and their insurers is far from straightforward and in some ways becoming more complicated.
Judgment on 24 June 2022 Dobbs v. Jackson Women’s Health Organization plunged the 50-year-old Roe v. Wade decision and held that there is no constitutional right to abortion in the United States.
Since then, various state laws related to abortion have gone into effect, and many legislators around the country continue to introduce bills. More than a dozen states have a complete ban on abortion, some prohibiting abortion after a certain point in pregnancy, and some requiring a waiting period. There are also states where abortion remains legal while courts decide whether bans can take effect.
The uncertain and changing legal environment leaves doctors, nurses and many other medical professionals – those on whom women depend for their medical expertise and to provide a standard of care – in a precarious position.
The consequences for abortion providers are clear ̵1; if they provide services in a state where abortion is prohibited, they are breaking the law. For other medical providers, such as OBGYNs and emergency room physicians, the legal and liability landscape is murky.
The risks should not be underestimated. Doctors and other practitioners who perform non-routine or emergency abortions – for example, to preserve the life of mothers – can potentially face jail time, fines and/or loss of their medical licenses in some states, if courts disagree with their assessment of the medical the necessity of the procedure. We’ll have to wait for the cases to go to trial to know for sure. At the same time, healthcare providers and their employers face the risk of criminal actions and lawsuits.
As we report here, medical malpractice insurers are trying to understand the changing legal landscape, and gray areas or gaps in coverage are emerging. For example, some policies may cover seizure of documents or provide sub-limits for the defense of a criminal action or the defense of a license proceeding. Some policies have positive exclusions, while others extend coverage.
How this uncertain situation takes insurance coverage for the medical profession and medical malpractice moving forward remains to be seen. Since 1973, then Roe v. Wade decisions were made, advances in diagnostics and technology have led to transformative changes in healthcare. Consider the surgeries now performed with robotic assistance and the many diagnoses that can be made at much earlier stages, all of which have contributed to improving patient care and medical outcomes.
Still, medical malpractice claims have increased in frequency and severity in recent years, as various factors such as malpractice and malpractice claims, covid-19, so-called nuclear jury awards, and the workforce crisis continue to impact the health care sector.
Through all this, and as the fallout from Dobbs judgment evolves, the need for effective risk management plans and adequate insurance coverage has never been greater. As medical professionals make critical medical decisions amid changing state laws, it is critical that hospitals and medical practices support their employees and remain focused on reducing risk. Medical insurers, too, must find a way to partner with their policyholders and provide sustainable coverage that can adapt to changing risks.