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. We also provide counsel specific to COVID-19. 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…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Plenty of ink has been spilled on Roe versus Wade since SCOTUS overruled its precedent which stood for almost 50 years. The issue of if and when a pregnancy can be terminated goes back to the states, where it lingered before Roe versus Wade codified the law of the land.
This post addresses one of the exemptions to the restriction. Colloquially, to “save the life of the mother.” As best I can tell, existing or pending statutes do not use this specific language.
The wording varies slightly from state to state. Texas allows abortion for “a medical emergency”; Louisiana’s bill makes an exception to prevent “death or substantial risk of death,” or “permanent impairment of a life-sustaining organ”; and Idaho permits abortion “to prevent the death of the pregnant woman.” …Oklahoma legislators approved a bill that would ban nearly all abortions starting from fertilization, with an exception to save the life of the mother “in a medical emergency.”
Seems straightforward, right?
I don’t think so.
The question physicians will face will be of this sort:
- How imminent is the mother’s death?
- Is the condition emergent, urgent, or elective?
- Can the expectant mother travel to another state to receive care?
Emergency Department physicians face analogous judgment calls every day when they evaluate patients. Can they send the patient home? Must they awaken the on-call specialist and persuade him to come in? Should they make that call? What’s the downside of getting their decision wrong? Should they err on the side of caution?
Two different Emergency Department physicians might and often do come to different conclusions.
Medicine is messy. Many patients present with ambiguous symptoms, multiple pre-existing conditions, and different tolerances to risk.
Now add to this recipe the oversight and second guessing of such decisions by the Board of Medicine or the district attorney. Is the decision worth losing your license? How about going to prison?
Let me illustrate with a prototypical, even if uncommon, vignette. Here, a medication used to treat breast cancer would be at odds with the hormonal milieu needed to sustain viable pregnancy. Further, the hormones produced because of the pregnancy might arguably “feed the tumor.”
Considering the high frequency of hormonal expression (positivity of estrogen receptor and progesterone receptor) in pregnancy-associated breast cancer, inquiries about the utilization of endocrine therapy in this scenario are pertinent. The physiological changes necessary for a healthy pregnancy and fetal development are mainly hormone mediated. Consequently, the utilization of drugs that block estrogen and progesterone production or action might interfere with those physiological processes. Of note, tamoxifen, the most utilized drug in the pre-menopausal context, is teratogenic in animals and has been associated with birth defects in children of women who inadvertently have utilized the medication during pregnancy. Hence, endocrine treatment is contraindicated.
Is this considered a medical emergency – hormone receptor positive breast cancer in a pregnant patient? Can the attending recommend terminating this pregnancy? Can the attending prescribe or even recommend tamoxifen? How will the Board of Medicine respond? The District Attorney?
Also, many oncology drugs routinely used in practice, do not have a safe track record with respect to fetal and neonatal outcomes.
From the second to eighth week of pregnancy organogenesis occurs, a critical phase with rapid differentiation and high vulnerability of the tissues to teratogenic insults. Exposures during this period are more likely to cause major malformations than in any other gestational period. Still, the central nervous system (CNS), genitals, eyes and the hematopoietic system continue to be vulnerable over the next few weeks of the first trimester. During the fetal phase that corresponds to the second and third trimester of pregnancy, the differentiated organs will complete their maturation and growth, and exposures in this period could interfere with this process and result in intrauterine growth restriction, low birth weight and preterm labor. Retrospective data have shown a high incidence of major malformation in expositions during the first trimester, around 14%, while during the second and third trimester the incidence was around 3%, which is similar to that of the general population. For this reason, chemotherapy should be avoided during the first trimester. If there is an urgent need to start treatment, pregnancy termination should be considered, and the mother should be properly advised of the high risk of teratogenicity in case she opts to carry on pregnancy. Chemotherapy during the second and third trimester is considered relatively safe. Although there is no increase in malformations rates, obstetrical and neonatal complications may occur more frequently, and close pregnancy and fetal vitality monitoring should be offered.
If you’re the oncologist prescribing medications to a pregnant patient with cancer, and you’ve explained the risks, benefits, and options to the mother, and the child is born with serious defects, what’s your civil liability, if any? In many states, the affected child can sue for damages two years after their 18th birthday.
Physicians have been trained to err on the side of caution.
Will physicians now err on the side of self-interest? When physicians swear allegiance to the Hippocratic oath, they don’t sign up to commit professional suicide. Interestingly, the “original” Hippocratic Oath included the promise to “not provide a “remedy” that causes an abortion.”
More modern revisions have avoided any mention of abortion. In a 2011 study published in the Archives of Internal Medicine, about 80% of practicing physicians reported participating in an oath ceremony, but only a quarter felt that the oath significantly affected how they practiced.
Back to issues with statutory language. Physicians are right to be concerned about the criminalization of medicine. The vast majority of legal pundits opining on criminal prosecution related to abortion do not believe pregnant mothers will be prosecuted. The same cannot be said for physicians involved in their care.
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. We also provide counsel specific to COVID-19. 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…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
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For anyone conflicted, the best way to sleep at night is to save a life and to always do the right thing for your patient. Who knows what doctors did pre Roe when patients desired or needed abortions, but these issues are certainly ones the state Medical Boards can decide. They have nothing better to do, and there need to be laws more specific than Rowe, that clarifies complex both complex vignettes, and basic ethics pertaining to the timing of elective abortion of pregnancies.
Hopefully this overturn may lead to an ease of restriction to adopting an American baby. It’s just too hard, and unnecessarily costly to get a baby made in China.
This question needs to be unpacked significantly.
First, the question of harm to the mother has come up over and over again. So have the matters of rape and incest. All of these are related to the “frequency of the need for abortion”. Except that all of those situations are extremely rare. The state legislatures are going to allow some leeway, for the instances mentioned above. If they do not, the federal government is going to give those women seeking abortions vouchers to travel to another state. Why the government should be providing free travel is beyond understanding since it continues government dependency instead of encouraging responsibility in contraception.
Second, most abortions are a matter of convenience, because of a lack of responsibility on the part of the conceiving parties. Witness the fact that many man have stated since the Supreme Court decision came down that they will be having vasectomies. Witness also that there is a run on the morning after pill (Plan B). These behaviors strongly suggest that there has been a lack of responsibility for the “hook up culture”. Therefore, the net effect of tightening of abortion regulations may be that people adopt a more responsible attitude toward prevention of pregnancy by having less unprotected sex.
Third, since Plan B is readily available everywhere without a prescription, all one needs to do is seek out that medication shortly after unprotected sex. Therefore, the need for an abortion, should decrease even more. Canada, the US, Russian and China have the most liberal abortion laws of any of the countries on the planet.
Fourth, expect that the warnings on drugs that can interfere with pregnancy will increase, both at the pharmacy level, physician level, and at the drug manufacturer labeling level. But how many blighted pregnancies caused by these drugs are occurring now? Does anyone have solid statistics on that?
Fifth, before lawyers, and legislators got involved legal abortions were rare. Illegal abortions occurred, but that was before the advent of modern contraceptives. Modern contraceptives starting around the time or after the Roe vs Wade decision, eliminated many unwanted pregnancies, and thus eliminated the need for abortions. Physicians followed the Hippocratic Oath and worked to preserve life.
Sixth, to the extent that Boards of Medicine have become more intrusive, has not been an aid at preserving public health. It has created hazards for physicians practicing because they can be tied up in web, that they did not intend to fall into. Boards of Medicine should pull back, and let the state legislatures deal with these issues. Legislatures by the same token should avoid criminalization of physicians, except in egregious cases.
Seventh, we never seem to focus on the suffering of fetuses when aborted after a fetal heart beat is detected. Nor have we focused on the tremendous loss of potential human beings, who could have invented a cure for cancer etc.
Eight, the current situation was brought about because of outrageous excesses in abortion laws, and practice, up to and after the time of birth. WHO SPEAKS FOR THOSE CHILDREN? They are discarded and murdered out of convenience. The late term gruesomeness of abortions has made this entire overturning of Roe vs Wade a necessity in the minds of many. If these abortions had been restricted to the first trimester, they might have been far less outcry. But the attitude of some practitioners and protesters was abortion on demand, at any time for any reason or no reason. That was too much for many citizens to bear, without a consideration of the rights of the unborn. In any legal case the rights of both parties must be acknowledged in a fair legal system. But the fetuses had no rights under Roe vs Wade. Even the judges involved in the case did not foresee how out of control things would become with abortion. So, in a way, the abortion rights movement swung the pendulum so far one way that it was bound to shift back.
Ninth, the radical protesters for Roe vs Wade, and the leftist commentators on media platforms, indicated that this was the end of abortion. But that is flatly false. The Supreme Court decision, will shift the burden for deciding about abortion rights to the states. The Supreme Court decided there was a constitutional right to abortion, where there was no such right enumerated in the constitution. Therefore anything not limited to the federal government is reserved to the states and to the people. Some states may decide to permit abortions. Others will not. In some states there may already be only one abortion clinic open. The number of OB/GYNs that are willing to become abortionists is very limited. That was true even before the current supreme court ruling.
Tenth, there are many many infertile couples in the US. They are desperately trying to become parents. In some cases they must resort to adoption. These prospective parents are to be commended. They should be celebrated, not looked down on. They undergo intensive scrutiny before they are allowed to adopt. Private adoptions are limited because there are so few babies available in the US. As a result, prospective adoptive parents are forced to travel overseas to try to adopt a baby. This could be alleviated, to a certain extent if 2nd and third trimester abortions are not permitted, or if abortions are banned entirely.
Eleventh, we are at a point where our country’s birth rate is below replacement level. The left has brainwashed our youth to think that our country is a terrible place. As a result, many young adults decide that they are not going to bring children into this world under any circumstances. That is due to terrible misinformation, and brainwashing. We should encourage a higher birthrate.
Twelve, on a related issue, we have by government policy of paying support for out of wedlock mothers in their middle teen years, encouraged less marriage, parenting without a father, and many children born into less than ideal circumstances, Thomas Sowell and Walter Williams, two black economists have written extensively about the breakup of black families and decreasing marital commitments as a root cause for crime, poverty, and more dire circumstances for children. The left cares nothing about these children even as they become wards of the state. The left accuses conservatives of not caring about children that were not aborted, yet the evidence is clear that conservatives have far more compassion (backed up with financial donations), about young children, than the left.
Finally, while there are going to be some issues that will need to be sorted out in regard to damaged pregnancies from different drugs, these should be able to be sorted out at the legislature level within the next couple of years. No one wants to see more physicians as targets of malpractice or licensure sanctions. But at some point the war on physicians must end if we are going to continue to recruit new physicians to practice medicine. Socialized and corporatized medicine, with masters other than the patient, have created fewer and fewer physicians willing to speak out on patient or physician interests, lest they put their career and livelihood at risk.