Medical Justice provides free 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 free consultation – or use the tool shared below.

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 18^th 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 free 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 free consultation – or use the tool shared below.

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 over 50 combined years of 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.