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As healthcare providers navigate a legal minefield that puts their obligations to patients at odds with new laws restricting abortion care, medical liability insurers are devising ways to help them avoid expensive civil and criminal defenses.
In states with narrow exceptions to abortion bans, doctors must determine how near a patient is to death to lawfully warrant the procedure. Delaying intervention can result in negative health outcomes that may prompt patients to file malpractice lawsuits. But offering abortion care more quickly could trigger criminal charges.
How doctors should proceed under these heightened circumstances is still being litigated in court. In the meantime, malpractice insurers, in conjunction with health systems, are developing policies on how providers can balance their responsibility to patients with their need to follow the law.
“We are emergency physicians. We make hard decisions every day. It’s what we do. But [prosecution] is a layer of uncertainty that’s unneeded,” said Dr. Rade Vukmir, a critical care physician and former chief clinical officer at the clinical practice management company SCP Health.
Liability insurers were already weary of an uptick in the criminal prosecution of clinicians who make medical errors amid staffing shortages and burnout, said Melissa Cunningham, deputy general counsel and vice president of Physician’s Insurance. The increased criminalization of mistakes and new state laws that make performing abortion a crime inspired the malpractice carrier to offer a novel benefit for policyholders subject to prosecution.
The Medical Professional Liability Association, State Volunteer Mutual Insurance Company and several Medical Mutual subsidiaries did not respond to requests for comment. Medical Mutual declined to be provide an executive for an interview.
Doctors can limit exposure to criminal liability in unclear legal situations by excessively documenting the reasons an abortion they administered was medically necessary, said Isabelle Bibet-Kalinyakm, a healthcare attorney at Brach Eichler. But although malpractice insurance might cover the cost of criminal defenses, it won’t make medical professionals immune to prosecution or punishment: “You can’t protect yourself by buying insurance for acts that are illegal,” she said.
Providers should develop policies on how to treat pregnant patients who require emergency abortions in states with restrictive laws, said Chris Zuccarini, managing director for the national healthcare practice at Risk Strategies, an insurance broker and consultancy. Those plans should include how to transfer patients to facilities in states with more liberal abortion laws and how to maintain communication between clinical teams, he said.
There is much work to be done. Nonprofit advocacy groups Physicians for Human Rights and the Center for Reproductive Rights surveyed hospitals in Oklahoma, where performing an abortion risks up to 10 years in prison, in December 2022. The organizations reported this month that 22 of 34 respondents had no guidelines that clinicians can use to determine whether an abortion is medically necessary to preserve a pregnant patient’s life. Seven hospitals told researchers the patient would have a say. Only two said its workers would have legal support if they decide to perform abortions.
Medical liability insurers must account for the criminalization of specific medical procedures when they calculate premiums, and the frequency of lawsuits and criminal cases resulting from new abortion policies will influence rate increases over time, Vukmir said. Malpractice insurance premiums already were rising before recent abortion policies took effect, the American Medical Association reported this month.
Physician’s Insurance added criminal defense reimbursement coverage to its medical liability plans this year. The benefit pays costs related to criminal charges arising from patient care, which can include abortions and other reproductive health services.
“Our goal is for them to follow the standard of care and avoid medical malpractice liability,” Cunningham said. “If that inadvertently triggers criminal liability, then the defense will be made available.”
The insurer added this supplementary benefit to all policyholders’ plans at extra cost and offered them the option to decline it, which few have done, a company spokesperson said. No members have filed criminal liability claims to date, the spokesperson said.
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