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White Paper

Reproductive health: Implications for healthcare systems, providers and hospital risk managers

By Joan M. Porcaro | November 22, 2022

Impact of the new ruling on medical care, medical malpractice insurance implications, standard of care and medical malpractice claims.
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After the Dobbs decision, healthcare providers may elect to review the provisions of applicable state statutes, requirements of medical licensing boards such as Boards of Medicine and corporate mission statements and policies in order to determine their approach to the delivery of reproductive services.

This white paper focuses on the impact of the new ruling on medical care, medical malpractice insurance implications, standard of care and medical malpractice claims.

Insurance implications

As individual states enact and clarify legislation in the wake of the Dobbs decision, it is difficult to predict how liabilities will impact insurance programs.

One of the few universal themes among commercial insurance carriers and across most lines of coverage is the use of a criminal act’s exclusion. These exclusions are not likely to be removed from commercial insurance policies because it is standard for criminal acts to be excluded as non-insurable risks.

Given the potential of the Dobbs decision to impact multiple lines of coverage, additional links are provided below to more in-depth discussions written by our WTW subject matter experts:

Insurance claims scenarios

Although not a complete list, the potential for civil claims, regulatory missteps, violations of newly enacted state laws, or failure to follow long-standing federal law requirements may come from the following scenarios:

  • Failure to treat to established standard of care
  • Delay in treatment or diagnosis
  • Avoidable maternal mortality
  • Lack of consistent or clear guidelines on fetal viability
  • Pregnancy, gender and religious civil rights discrimination claims
  • Health Insurance Portability and Accountability Act (HIPAA) and Hi-Tech Privacy issues
  • Federal EMTALA requirements
  • Enforceability of subpoenas, warrants, etc. across state lines
  • Food and Drug Administration (FDA) preemption issues regarding bans on abortion-inducing medication

Key elements for consideration

Considering the aforementioned claim scenarios, a summary follows that further identifies the types of issues that may rise to the level of possible claims, citations, grievance and/or violations of state or federal laws.

Links are included within the paper to provide reader with source documents.

Healthcare liability insurance

Provider liability and standard of care

With this change in law, medical providers find themselves in a state of moral distress when trying to determine the threshold between following a state law that may not be in alignment with the standard of care for reproductive health. For some, this is more than a legal matter but also one that may create ethical dilemma. Many of the national physician organizations have developed policy statements on the matter as follows:

Provider liability and standard of care

National organizations such as the American College of Obstetrics and Gynecology (ACOG) have developed initiatives to enhance the patient care experience and the outcome of care for the OB patient. With a focus on patient safety, maternal health is one of the only areas where decisions made for one patient, may impact the outcomes for both mother and fetus.

With the introduction of Roe v. Wade in 1973, maternal healthcare outcomes improved. The healthcare publication, The Advisory Board, reports that the limits some states have placed on abortion may bring the following historical statistics back into the forefront. In other words, the accessibility of reproductive care may return patients to pre-Roe v. Wade levels of care, which included:

  • An increase of maternal mortality by 14%
  • Unsafe attempts at abortion resulting in further impact and harm by 11%
  • Further racial and ethnic disparities in care

Organizations providing reproductive health should consider reviewing their maternal care quality-of-care initiatives, standards of care, bylaws and peer review processes. Your hospital professional liability (HPL) insurance carrier and broker can review current loss runs and areas of opportunities to enhance patient safety and reduce bad outcomes.

Abortion medications

Currently, more than half of all legal abortions are already conducted using medication rather than surgical procedures. Drugs that are commonly used include mifepristone and misoprostol.

Abortion-inducing drugs are effective up until 10 weeks of pregnancy and are proven safe and effective. Few using them require medical evaluation as self-managed medication abortion is statistically equivalent to provider-supervised medication abortion. The FDA removed the requirement that abortion drugs be prescribed in-person in 2021.

The U.S. Justice Department has stated that it will oppose any state ban on prescribing these drugs “based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Telemedicine providers may also prescribe these medications using proper clinical protocols, but some states require telemedicine providers to have local licenses, which means this option will likely not be available in all states.

Medication usage

Not all medications have a single purpose. When some fetal tissue remains in a patient’s uterus after a miscarriage, or if a patient’s uterus has failed to expel a nonviable fetus, the physician may prescribe misoprostol among other drugs to complete the process. This has long been the standard of medical care.

A secondary use for misoprostol is to soften the cervix to reduce pain during gynecological procedures or internal exams being done for a condition outside of pregnancy.

Some of these issues are already creating administrative problems that cause, in addition to pain for the patient, delays in treatment or less than standard of care being delivered. For example, Texas statute, Senate Bill 4, restricts the distribution of medication (misoprostol) that can be used for abortions. Senate Bill 4 recently added additional medications to the category of “abortion-inducing drug” and now includes methotrexate.

The drug, methotrexate, is another medication considered the standard of care for miscarriage. Since 1959, the drug is prescribed for other valid medical reasons, including some cancers, rheumatic diseases, arthritis and autoimmune disorders such as lupus. Many patients use this treatment after exhausting all other options for these medical conditions.

In some states, retail pharmacies are putting prescriptions of methotrexate on a “pause” for patients of childbearing age until they can receive legal direction from their corporate office. Patients may now be subjected to possible delays in receiving their medication while they await the pharmacy decisions – decisions that may be counter to their own long-standing physicians’ treatment orders. Patients, no matter their age in some states, must prove to the pharmacy that they are not pregnant.

The patient, while awaiting the refill, could experience further debilitation or irreversible damage to joints and organs (or even death). Addressing liability in these situations may be complex and problematic where the root cause may rest. To date, no process has been set in motion that outlines how this proof will be obtained.

Miscarriages

One million people experience early pregnancy loss annually (2022) impacting approximately 10% to 30% of all pregnancies. Some experience miscarriage prior to becoming aware that they are pregnant. Several require emergency intervention due to complications such as tubal rupture or to prevent further physical harm.

Another important consideration is that the medical term for a miscarriage is spontaneous abortion. But many don’t always understand that the term does not mean elective abortion.

Those who have miscarriages or spontaneous abortions who retain fetal tissue are at high risk of severe infection and death. While some states have enacted or intend to enact bans on abortion that could restrict medical procedures for those with nonviable pregnancies, the Health and Human Services Department has stated that EMTALA requires hospitals and doctors to provide medically necessary treatment and “preempts any directly conflicting state law or mandate that might otherwise prohibit or prevent such treatment.” Emergent care when needed is essential.

Jailed for having a miscarriage

To date, there have been a few cases where the actions of the mother – whether deliberate or accidental – resulted in a miscarriage. Ms. Brittney Poolaw was jailed following a miscarriage in light of her drug use that some believe may have adversely impacted the pregnancy resulting in miscarriage.

Such situations may influence states to open investigations to determine if the pregnant individual’s actions contributed to the miscarriage in any way such as drug use during pregnancy or other high-risk behaviors to determine if the situation rises to a criminal event. However, no threshold has been set as to what may be considered “criminal or damaging behavior.” The process for investigating such issues rests on a slippery slope, highlighting the basics of civil rights such as privacy.

Fertility

How state abortion bans may impact fertility treatments is unclear. Roe provided protections as precedent and the door may be open now for future restrictions in care. Discussions on the topic of fertility treatments have begun in those states that ban abortions from the point of conception. Further restrictions and controls of embryos created outside of the womb, genetic testing, and storage and disposal of the embryos may come later.

An important consideration in such situations is embryo disposal. It is a common practice for the parents to decide to dispose of unused embryos. It will be interesting to see what direction some states will take on this matter.

Genetic testing

In July 2022, the U.S. Court of Appeals ruled in favor of Georgia’s Republican Gov. Brian Kemp supporting not only the abortion ban but also the provision of the law that endows embryos with the legal status of “personhood.”

Dependent on maternal and paternal medical health history, it is standard of care to conduct genetic testing on embryos for such disorders as Tay-Sachs or other chromosomal anomalies before implantation of select embryos. Typically, the affected embryo (one demonstrating evidence of the disease) would be disposed of. As noted in The New York Times, will parents be required to donate the embryos for adoption or to store them indefinitely? Could or should parents transfer their embryos to another state?

The American Society for Reproductive Medicine has analyzed state abortion trigger laws and highlights in their report any such implications.

Federal and state regulatory requirements

Emergency Medical Treatment and Labor Act (EMTALA)

On July 11, 2022, the U.S. Centers for Medicare and Medicaid (CMS) issued a memorandum to the agency’s state surveyors intended to clarify and further define how EMTALA sets the obligations owed by hospitals to pregnant patients or those experiencing a loss of pregnancy. There are essentially three primary requirements of EMTALA, and they are:

  1. The patient must receive a medical screening exam to determine if there is presence of an emergency medical condition.
  2. If an emergency medical condition is present the patient will receive stabilizing treatment.
  3. If the facility does not have the needed care, provider or treatment available to stabilize the patient, then a transfer to another facility must take place.

Emergency medical conditions highlighted in the memo from CMS include ectopic pregnancy, complications from loss of pregnancy and emergent maternal disorders such as preeclampsia. Appropriate stabilizing treatment that has served as the standard of care for such disorders include dilation and curettage (D&C), methotrexate and removal of fallopian tubes or tubes as well as other medical or surgical intervention.

CMS highlighted that its authority to enforce and to direct state officials in the enforcement of EMTALA, preempts state law. Violating EMTALA can include fines, suspension of provider agreements (loss of funding) and/or a civil lawsuit from the patient.

Privacy protection

There are dozens of phone apps that provide tracking of menstrual cycles and reproductive health such as Eve Tracker and Ovia Fertility Period Tracker and there is uncertainty as to current and future privacy policies for such services.

The U.S. Department of Health and Human Services issued guidance to patients and their providers following the Supreme Courts recent decision. In general, the guidance does two things:

  1. Addresses how federal law and regulations protect individuals’ private medical information (known as protected health information or PHI) relating to abortion and other sexual and reproductive healthcare – making it clear that providers are not required to disclose private medical information to third parties
  2. Addresses the extent to which private medical information is protected on personal cell phones and tablets and provides tips for protecting individuals’ privacy when using period trackers and other health information apps

According to recent reports, many patients are concerned that period trackers and other health information on social media may threaten their right to privacy by disclosing geolocation data which may be misused by those seeking to deny care.

In a recent case in Nebraska, a 43-year-old woman is facing felony charges for helping her teenage daughter obtain an abortion. Both face additional charges for concealing a death and illegally disposing human remains. In their investigation, police sent a warrant to Facebook requesting private messages (Facebook Messenger) between the two parties.

Of particular interest in this case is that the events took place before Roe was overturned. Yet, Facebook elected to honor the warrant.

No matter the outcome in this case, the investigative techniques used by law enforcement in Nebraska clearly set the stage for how police may come to rely on digital communications to investigate abortions in states where the procedure is illegal.

Accessibility to care

Traveling to obtain reproductive care may not be readily feasible for all due to budget constraints as such travel could be cost prohibitive. In addition, many are not able to take the needed and extended time away from work that traveling across state lines may require. Others may have family caregiving responsibilities that challenge such travel.

Some employers announced plans to cover travel expenses for employees seeking abortion services, often as part of their group health plans, and others expanded existing travel benefits to any situation where access to care is geographically limited. For more on this topic, see our WTW article: 7 questions for employers after ‘Roe’ was overturned.

Interstate travel

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

One of the key rights under the 14th Amendment is the right of a citizen as noted above to move freely between states. Presently, there have been no changes to this law. However, interstate travel that is possible today may experience future modifications.

Currently, there are no such bans but for some states the consideration for limiting interstate travel and possibly applying criminal charges is up for discussion. Some states (Texas and Oklahoma at the time of this writing) have enacted laws that allow for the average citizen to report to law enforcement:

  • Anyone who seeks an abortion
  • Obtains an abortion
  • Any family and friends who assist in any way, including driving the pregnant person to their appointment
  • Any healthcare provider who provides reproductive advice that is counter to the law – to be subject to criminal charges

In July 2022 a bill, H.R. 8297, passed in the U.S. House of Representative ensuring the protection of a citizen to access out-of-state reproductive care. Specifically, the bill prohibits any person acting under state law from preventing, restricting, impeding, or retaliating against:

  • Healthcare providers who provide legal abortion services to out-of-state residents
  • Any person or entity who helps healthcare providers to provide such services
  • Any person who travels to another state to obtain such services
  • Any person or entity who helps another person travel to another state to obtain such services
  • The movement in interstate commerce of drugs that are approved to terminate pregnancies

The Department of Justice may enforce this bill through civil actions. The bill also establishes a private right of action for violations.

The bill has not yet been voted on in the Senate as of this writing.

Closing comments

At present, this situation is rapidly changing. It will require vigilance in monitoring for changes in local laws. For healthcare organizations or physician practices, it is important to:

  • Know whether your practice or organization’s reproductive services are being offered in a restrictive or non-restrictive state.
  • Ensure that your government affairs team has the pulse of this changing dynamic and will keep your leadership and legal team in the know of the laws for your state.
  • Maintain open lines of communication with your in-house legal team.
  • Have a good understanding for rendering care for the post procedural needs for out-of-state patients.
  • Have a clear understanding of your insurance coverage requirements will be essential.

Disclaimer

WTW hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).

Author

Associate Director, Client Relationship Management, North America Healthcare Industry

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