Abortion bans force insurance companies to adjust

As healthcare providers navigate a legal minefield that puts their obligations to patients at odds with new laws restricting abortion, medical liability insurers are developing ways to help them avoid costly civil and criminal defenses.

In states with few exceptions to the abortion ban, doctors must determine how close a patient is to death in order to legally justify the procedure. Delaying intervention can lead to negative health outcomes, which may encourage patients to file a medical malpractice suit. But offering abortion help more quickly could lead to criminal prosecution.

How physicians should act in these heightened circumstances is still up in the courts. Meanwhile, insurance companies are working with health systems to develop policies on how health care providers can balance their responsibility to patients with their need to comply with the law.

“We are paramedics. We make difficult decisions every day. This is what we do. [prosecution] it’s a layer of uncertainty that isn’t needed,” said Dr. Rade Vukmir, a critical care physician and former chief clinical officer for a clinical practice management company. SCP Health.

Liability insurers are already tired of the growing number of criminal prosecutions of doctors making medical errors amid staffing shortages and burnout, said Melissa Cunningham, deputy general counsel and vice president Medical insurance. Increasing criminalization of errors and new state laws that make abortion a crime have prompted the malpractice carrier to offer a new benefit to sued policyholders.

The Association for Medical Professional Responsibility, the State Voluntary Mutual Insurance Company and several subsidiaries of Medical Mutual did not respond to requests for comment. Medical Mutual declined to provide an executive for an interview.

Doctors can limit criminal liability in unclear legal situations by over-documenting the reasons why their abortion was medically necessary, said Isabelle Bibet-Calignacme, a public health attorney at Brach Eichler. But while malpractice insurance can cover the cost of a criminal defense, it won’t make medical professionals immune from prosecution or punishment: “You can’t protect yourself by buying insurance for activities that are illegal,” she said.

Health care providers should develop a policy for the treatment of pregnant patients who require emergency abortion in states with restrictive laws, said Chris Zuccarini, managing director of National Health Practice at Risk Strategies, insurance broker and consultant. Those plans should include how to transfer patients to facilities in states with more liberal abortion laws and how to liaise between clinical teams, he said.

There is a lot of work to be done. In December 2022, non-profit advocacy groups Physicians for Human Rights and the Center for Reproductive Rights conducted a survey of hospitals in Oklahoma where performing an abortion could result in up to 10 years in prison. used to determine whether a medically necessary abortion is necessary to save the life of a pregnant patient. Seven hospitals told the researchers that the patient would have the right to vote. Only two said their workers would receive legal support if they decide to have an abortion.

Medical liability insurers need to consider the criminalization of specific medical procedures when calculating premiums, Vukmir said, and the frequency of lawsuits and criminal cases arising from new abortion policies will drive up rates over time. The American Medical Association reported this month that malpractice insurance premiums were already on the rise before the recent abortion policy went into effect.

This year, Physician’s Insurance added criminal defense reimbursement coverage to its medical liability plans. The benefit covers costs associated with criminal charges related to patient care, which may include abortions and other reproductive health services.

“Our goal is for them to follow the standard of care and avoid liability for medical malpractice,” Cunningham said. “If it would inadvertently result in criminal liability, then a defense would be available.”

The insurer added this added benefit to all policyholders’ plans for an additional fee and offered them the option to opt out, which few did, the company spokesman said. According to the spokesman, to date, none of the participants have filed claims for criminal liability.

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