How the Dobbs decision affects medical professional liability

On June 24, 2022, the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that abortion was not a constitutional right, reversing the 1973 Roe v. Wade decision and giving individual states the authority to regulate access to abortion. The Dobbs decision is creating fear and uncertainty among medical professionals.

To better understand the implications of Dobbs for health systems and medical professionals, Becker’s Hospital Review recently spoke with Allison Adams, an attorney at Starnes Davis Florie LLP who specializes in medical malpractice defense, and Katie Theodorakis, a regional manager in risk management at ProAssurance, who provides risk management advice to physicians, hospitals and other providers to help them mitigate liability risk and avoid litigation. They discussed the current legal landscape and what health system leaders can do to help their teams navigate the legal requirements in their state.

Because of the Dobbs ruling, the legal landscape has tremendous uncertainty

“The current legal landscape is a winding path. There are hills and turns and curves that medical providers and litigators can’t see around right now. We don’t know exactly what’s ahead,” Ms. Adams said. “That’s because most of the state laws governing abortion have not been tested in court and have not been applied to an actual medical situation — and that can lead to a lot of anxiety in both the legal world and the medical world.” Ms. Adams anticipates that until some test cases make their way through the courts, there will continue to be anxiety and uncertainty.

Part of that uncertainty comes from the ambiguity currently found in the patchwork of state statutes and the various terms that are used in the law. For example, almost every state law governing abortion allows some exception in order to save the life of the mother, but the language used is different between states and is not always specifically defined within the state’s own law. One state may allow an abortion if the risk of death to the mother is “imminent,” while another state might require the risk be “immediate.” And neither state identifies what period of time constitutes “imminent” or “immediate.” “None of the laws thus far have given real, concrete and particular guidance [as to the interpretation of the terms],” Ms. Adams said.

For now, Ms. Adams sees a bit of a waiting game until elections take place at the state level, until courts rule in test cases and until there is a greater degree of clarity and certainty as to how the terms in the various state laws will be applied to actual medical scenarios.

There are specific actions providers should take in this uncertain legal environment.

Both Ms. Adams and Ms. Theodorakis agreed that despite the current uncertainty, there is a great deal that providers can do to mitigate their risk. “I don’t think that medical providers are left on this winding path without a basic roadmap,” Ms. Adams said. “Providers still have at their disposal the same tools that they’ve always had – which is their training, their education, their experience, and their knowledge of the standard of care. Those tools are still there to guide them through their medical decision-making and relying on those same tools continues to be my advice as we navigate a post-Dobbs world and until we get some greater clarity [on how each state’s law will be interpreted].”

Among the advice for health systems and providers is also to know their own state’s abortion laws. “My strong advice is for each provider and each health system to become acquainted with their state’s law and the specific language in the law . . . you need to engage legal counsel that is familiar with how your state’s law defines abortion and of any limitations the law might place on the ability to provide reproductive care,” Ms. Adams said.

“Establish policies or guidelines and processes for the health system, the providers and staff to follow, and ensure that everyone knows the guidelines and processes,” Ms. Theodorakis said. She also recommends training “to emphasize the importance of using basic risk-management principles” including “thorough documentation of medical decisionmaking” and a comprehensive informed consent process. Ms. Theodorakis also advised that providers can prepare by establishing these guidelines, conducting training and having processes in place ahead of time—not waiting until faced with an urgent situation.

These experts stressed the importance of providers following evidence-based medicine and the existing standard of care. “If [providers] follow evidence-based medicine and use their clinical judgment — based on their education, training and experience — then they are providing quality care for patients and that will greatly help mitigate their risks,” Ms. Theodorakis said.

Conclusion

Ms. Adams observed “there’s a lot of fear in physicians and health systems right now” related to the Dobbs decision, but noted, “I don’t know that this fear reflects the reality of what’s happening in each state. I want physicians and health systems not to be fearful and, instead, to be aware of the tools they already possess to navigate this new landscape. They simply need to hone these tools and identify when, and in what circumstances, to use them.”

These tools include relying on their education and training, discussing the reproductive risks, benefits and alternatives of their treatment with their patients and conscientiously documenting those discussions. This means using the specific language from their state’s law when documenting their medical decision-making. For example, if a state allows for an abortive procedure if the mother is at “immediate” risk for serious injury, using that specific language in the medical record, where appropriate, is advised. These tools, in combination with health system guidelines and a clear understanding of the laws in each state, will help point providers in the right direction.

“Providers should be encouraged to reach out for guidance and assistance so they do not feel like they are struggling with this alone,” Ms. Theodorakis said.

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