Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Abortion is a lightning rod issue. It has been that way since Roe versus Wade was decided. It has been that way since Dobbs versus Jackson overturned Roe versus Wade. State legislatures are now able to codify their standards for what is and is not permissible.
What is the current law?
In 2021, Texas passed the heartbeat rule.
The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected. The Texas Heartbeat Bill became state law with a trigger in place that subjected it to a Supreme Court ruling which has now effectively enabled it.
Doctors face criminal prosecution for abortions in Texas after a fetal heartbeat is detected (generally 6 weeks). The penalties can be onerous. Physicians who perform abortions in violation of the law can face life in prison.
More recently:
A new affirmative defense was created that applies to the prosecution of abortions. HB 3058 creates an affirmative defense for doctors and health care who perform an abortion in two scenarios:
1. An ectopic pregnancy (which is when a fertilized egg implants and grows outside the main cavity of the uterus); and
2. A premature rupture of the amniotic membrane in a pre-viable embryo (in other words, the mother’s water broke before the embryo was viable).
To prove the affirmative defense, the defendant must show that he or she exercised reasonable medical judgment in providing medical treatment for those complications. Keep in mind that as an affirmative defense, it is one that must generally be raised in court. In other words, it may not prevent an arrest and prosecution; if proven it would mean that criminal responsibility should not attach. The new law provides the same defense may be raised in a hearing with the Texas Medical Board.
Recently, news broke of a woman in Texas who sought a court order to allow her to terminate her pregnancy (post-heartbeat-detection). The lower court ruled in her favor. The Texas Attorney General appealed to the Texas Supreme Court. That Court put a hold on the lower court ruling to give it time to opine. In the meantime, the woman, Kate Cox, supposedly went out of state to have the procedure done.
On December 11th, the Texas Supreme Court published its opinion. It’s only 7 pages, so it’s a short read.
First, it recapitulated the facts which triggered the legal case.
Kate Cox and her husband Justin are the parents of two children. Ms. Cox is about twenty weeks pregnant with a third child—one who has received a tragic diagnosis. The Coxes and their doctor sue to prevent the enforcement of Texas laws that generally prohibit abortion. These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice. Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception. The law allows an abortion when:
in the exercise of reasonable medical judgment, the pregnant female . . . has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced. TEX. HEALTH & SAFETY CODE § 170A.002(b)(2).
The Court continued that courts don’t make this decision. Doctors do. They use reasonable medical judgment, an objective standard. The law defines “reasonable medical judgment” as “a medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.” TEX. HEALTH & SAFETY CODE § 170A.001(4). In this case, the patient’s doctor supported the case with a “good faith belief” that the existing medical exception was relevant. Good faith belief is a subjective standard. Reasonable medical judgment is an objective standard. They are not the same.
Only a doctor can exercise “reasonable medical judgment” to decide whether a pregnant woman “has a life-threatening physical condition,” making an abortion necessary to save her life or to save her from “a serious risk of substantial impairment of a major bodily function.” If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion. In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires. No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses. The exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks. Dr. Karsan asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires. Despite this, the trial court ruled that a prospective abortion would “fall within the medical exception” to Texas’s abortion laws. Based solely on the verified pleading, it issued an order restraining the Attorney General from enforcing the abortion laws against Dr. Karsan and others related to the case. The State seeks relief from the trial court’s order.
A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.
Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise “reasonable medical judgment,” the Legislature determined that the medical judgment involved must meet an objective standard. Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard. Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it. The trial court erred in applying a different, lower standard instead of requiring reasonable medical judgment.
Though courts may not expand the statute beyond the Legislature’s remit, limiting a physician’s judgment by construing the exception more narrowly than the statute provides would likewise be error. For example, the statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.” The exception does not hold a doctor to medical certainty, nor does it cover only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.
A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed. Nothing in this opinion prevents a physician from acting if, in that physician’s reasonable medical judgment, she determines that Ms. Cox has a “life threatening physical condition” that places her “at risk of death” or “poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
The Court then closed by stating the Texas Medical Board is empowered to provide guidance related “to any confusion that currently prevails.” The Court seemed to be asking the Texas Medical Board to pre-emptively answer these questions as doctors.
“Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do.”
“The Board could assess various hypothetical circumstances, provide best practices, identify red lines, and the like. It has provided such needed guidance in other contexts, such as its COVID-19, Guidance & Frequently Asked Questions (FAQs), available at https://www.tmb.state.tx.us/page/coronavirus. And if the Board does provide guidance, it can request an opinion from the Attorney General, who has substantial civil-enforcement authority, regarding the legal effect of physicians’ compliance with the Board’s guidance. See TEX. GOV’T CODE § 402.042(b)(5).”
Given the steep penalties, it is understandable why physicians would want guidance and support in defining what is and is not allowed in Texas. Will such a task force be convened by the Texas Medical Board with recommendations published soon? I would not hold my breath.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Delivery of a nonviable pregnancy can lead to bleeding or scarring of the uterus, which could complicate future pregnancies. The longer the pregnancy lasts the greater the risk. While not posing an imminent risk to her life the continued pregnancy increases her risk for future pregnancies.
An additional argument can be made. Carrying a non-viable pregnancy for nine months is involuntary servitude to the products of conception once the products of conception are determined to be non-viable.
I don’t recall the Texas Medical Board showing a lot of initiative or intelligence in guiding physicians as to how to interpret laws. I believe they were in fact joint parties (with the AG) in opposing the Cox case. And as to the SCOTX’s suggestion that the TMB consult the AG regarding compliance? As cynical as it is circular.
In IN, several members of the MB were political supporters of THAT malevolent AG who launched contrived complaints there against Caitlin Bernard. After an 11 hr hearing, she was fined $2500 by them for “unprofessional conduct”, despite AMA CEJA’s testimony in support of the ethicality of her actions. THAT AG was then fined only $250 for his clear breach of legal ethics by his own bar (board equivalent).
Since Medical Board actions are usually enforced by state AGs, it is always a perilous situation for doctors when the boards act in concert, sometimes ultra vires (e.g. Van Boven), to push a political agenda or personal vendetta.
What a shit show. Trisomy 18 is a terrible diagnosis that often leads to a non viable baby, or a dead baby within a year. Yes, there are a few case reports of these children surviving, but this case truly defines the sanctity of the doctor-patient relationship. Some couples would opt for the pregnancy proceeding and some (likely most) an abortion. The State needs to stay out of this one. This defines a personal decision that ought not be broadcast to the world. Thanks.
Extremely reasonable objective perspectives are presented in the reply section of this post. Sadly, even many clinicians can have ideological preconceptions that are narrowly minded. Yet, we have seen time after time how courts can misinterpret their own judicial edicts leading to further polarization and confusion & tragically violating patient-self autonomy.
It is highly unlikely that any state medical board will provide any “advice” on how to protect physicians on abortion questions. This is a politically charged issue. Every physician who does GYN surgery is “on their own.” Fortunately, I believe there is a partial solution to this quandary: “Prospective Defense.” A sliding chart audit schedule. Imperfect? Yes. But better than nothing.
DIGITAL CHART AUDIT™ This system provides point values to features of chart notes and patient qualification standards. The “idea” would be to evaluate your patient, perhaps even under emergency conditions and fill the form out. “Point values” are assigned to each cohort. That would be incorporated into your medical chart. I am not an MD. I do not perform GYN surgery, so we need an expert. I assume the highest number of points would be ectopic pregnancy. Others probably also provide lesser numbers of points. But they can still be totaled up. Comorbidities? Those get points. In cases where the surgeon is still evaluating the patient, say in an emergent situation, you really can’t tell ahead of time.
The idea is to “play the legal game” at the level of counsel. You are telling the Jury: “You are doing your best to follow the law.” Patient wishes and their religion (or not) can also get points.
When I prepare these forms, I keep it one page “check off.” It only takes 2 minutes. It can be filled out on the fly. The idea is to be PREPARED WITH A PROSPECTIVE DEFENSE for your surgical choice, whether or not a D and C is chosen.
If Medical Justice wishes to work with me on preparing the format, they could offer this to their clients as part of their services. I am not interested in a fee to help prepare it. Your choice: Appear before a judge and a jury without any clothes on? Or try to cover yourself with a “statistical defense.” Your medical board will not lift a finger to help you. It is a bridge they will not cross.
Michael M. Rosenblatt, DPM
1)Again so much legalese that a physician would be tied in knots trying to understand it, and even if they consulted an attorney, or the board it would remain ambiguous.
We must put an end to this legal onslaught that prevents physicians from doing what they are trained to do.
2)Can we get away from prosecuting physicians for trying to act in good faith in providing appropriate care to patients?
3)The old standard was that an abortion could be performed to protect the life or health of the mother, without specifying exacting standards. That is where it should stay. If the state wants to impose a elective standard of 16 weeks, okay, but there must still be the ability to have a legal out such as in the case described. Then it can be reviewed by the state board of health, not the prosecutor and not the board of medicine, which both lead to marks on the physicians record.
4) I predicted to my family that it would take at least 2-3 years after the supreme court decision reversing Roe v Wade, for the states to come up with some appropriate laws that would be challenged. Rather than one individual standard there will be 50 standards. Some states will be better served than others. The states that try to impose their will on their citizens going outside the state for legal abortions in other jurisdictions are likely to be proved unenforceable.
5)While I find abortion abhorrent in the near term baby, and the viable fetus above 22 weeks, before viability there should be some flexibility. But that also imposes a not unreasonable burden on the pregnant female to act in a time appropriate manner. The Texas statute doesn’t even give the pregnant female that choice.
I still think the health and safety of the mother (even if it is future health), is the first obligation.
6)Abortions should not be the contraceptive of choice, as had been the case under Roe v Wade.
How unfortunate that the authors misrepresent the law.
Sec. 171.205 specifies that 171.203 and 171.204 “do not apply” in the case of a medical emergency. https://statutes.capitol.texas.gov/Docs/HS/htm/HS.171.htm
Further the authors’ use “embryo” in the explanation about the treatment of premature previable rupture of membranes. The prenatal human is an “embryo” up to about 8 weelsafter which the human is a “fetus.”