A year after the landmark case of Roe v. Wade was overturned, there are reports of physicians and hospitals in states with restricted abortion laws refusing to provide necessary care to women facing complications during pregnancy. These medical professionals fear that they may face criminal prosecution or lose their medical licenses if they perform abortions. Experts are now predicting that these providers may face a new legal threat in the form of medical malpractice lawsuits for failing to provide timely and necessary abortion care.
Diana Nordlund, an emergency physician and former malpractice defense attorney, who chairs the Medical-Legal Committee of the American College of Emergency Physicians, believes that we will see medical malpractice cases emerge. When physicians choose not to provide treatments that are considered the standard of care due to these new laws, it is seen as substandard care, leading to increased civil liability. Some physicians and malpractice attorneys believe that it is only a matter of time before a pregnant patient dies due to lack of care, leading to a wrongful death claim.
Abortion rights supporters argue that such a case could pressure doctors and hospitals to provide appropriate abortion care, counterbalancing their fears of violating state abortion bans that carry punishment such as criminal prosecution and license revocation. They believe that there needs to be a counter-risk for physicians and hospitals who refuse to provide care that should be legal.
On the other hand, some supporters of abortion bans welcome the possibility of malpractice lawsuits. They argue that providers are not utilizing the exceptions in some state laws that allow them to perform abortions to save a patient’s life or health. They believe that such lawsuits could clarify that the law does not contradict standard medical practice.
A recent poll by KFF found that a significant number of OB-GYNs practicing in states with gestational limits on abortion and bans are concerned about their legal risks when making decisions about the necessity of an abortion. Attorneys are also exploring lawsuits on behalf of women who have been harmed by state abortion bans.
Reports and studies have shown that women with pregnancy complications have suffered serious health consequences when doctors and hospitals did not provide routine abortion care. The lack of timely abortion care in these cases can lead to preventable complications, hospitalizations, and even death.
Despite these factors, some stakeholders argue that patients may be reluctant to sue doctors, and juries may be hesitant to find them liable. They believe that doctors are being put in a difficult position where they have to choose between medical ethics and personal risk. Additionally, state abortion bans could undermine the argument that abortion is the legal standard of care.
Another factor that discourages physicians from providing abortions is that medical liability insurers generally do not cover damages from criminal acts, making it even more unlikely for doctors to take action.
However, there are attorneys who would be eager to take on cases where women have suffered serious health or emotional injuries due to being denied an abortion. In states like Florida, where there are no caps on damages for pain and suffering in malpractice cases, it is financially viable to pursue legal action.
In some instances, failing to counsel patients about their options and connect them with willing providers is also seen as grounds for a malpractice suit. Physicians have an ethical obligation to offer counseling and referrals, even under abortion restriction laws.
The stories of women like Mylissa Farmer and Nancy Davis highlight the devastating consequences of being denied necessary abortion care. They are considering legal action to hold their doctors and hospitals accountable for the physical and emotional damages they have experienced.
In conclusion, the restrictions on abortion have created a challenging environment for medical professionals and patients. There is a growing concern about the lack of timely and necessary abortion care, which could lead to medical malpractice lawsuits. It remains to be seen how these legal challenges will shape the future of abortion care and the rights of women facing pregnancy complications.
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