Over at the main page, Patrick posted about a couple of abortion bills that are making their way toward becoming laws in Kansas and Arizona. According to this post on the ACLU Blog of Rights, from which Patrick quoted, the laws would protect doctors from lawsuits if they deliberately withheld information from prospective parents that might have led to an abortion. That I find the prospect of such a law horrifying should go without saying, but I’ll speak to that in a moment. What I’m really curious about is what those laws really say.
If you follow the link chain starting in that ACLU post, you get to a couple of articles about the Arizona law. The first is a post at The Raw Story, headlined “Arizona Senate approves lying to women to prevent abortions,” which reveals:
The Arizona Senate on Tuesday approved a bill that would allow doctors withhold information about prenatal problems if it could make the decision to have an abortion more likely.
Republican state Sen. Nancy Barto introduced the measure to protect doctors from so-called “wrongful birth” lawsuits.
[snip]
Barto claimed that a doctor could still be sued if there was evidence of wrongdoing.
“If a doctor intentionally or knowlingly withholds information then a lawsuit could be appropriate,” she said. [emphasis added here and below]
Unless Barto is grossly misrepresenting the language of her bill, it seems that it doesn’t actually allow doctors to lie. Clicking through a link in the Raw Story post, you get this article from the Arizona Capitol Times:
The Arizona Senate has approved a bill that would shield doctors and others from so-called “wrongful birth” lawsuits.
Those are lawsuits that can arise if physicians don’t inform pregnant women of prenatal problems that could lead to the decision to have an abortion.
[snip]
The bill’s sponsor is Republican Nancy Barto of Phoenix. She says allowing the medical malpractice lawsuits endorses the idea that if a child is born with a disability, someone is to blame.
Barto said the bill will still allow “true malpractice suits” to proceed.
Again, from what I can see, the bill wouldn’t allow doctors to withhold information intentionally, but would protect them from litigation if parents feel something should have been detected but wasn’t. Assuming that true malpractice really isn’t covered by the bill, I’d actually be inclined to endorse it. I don’t understand how it would infringe on anyone’s reproductive rights, at least as reported.
So what about that Kansas bill? From the ACLU post (also quoted by Patrick), there’s this:
[P]oliticians in Kansas are giving pregnant women and their partners something new to worry about. Buried in a sweeping anti-abortion bill is a provision that would immunize a doctor who discovers that a baby will be born with a devastating condition and deliberately withholds that information from his patient. That’s right. If the bill passes, a doctor who opposes abortion could decide to lie about the results of your blood tests, your ultrasound, your cvs or your amnio. Lie to you so that you won’t have information that might lead you to decide to end your pregnancy or that might lead you to learn more about your child’s condition so that you are prepared to be the best parent you can be to your child. [emphasis in original text]
But does it really allow for doctors to withhold information deliberately? Given that the Arizona bill seems to have been misrepresented in that regard, I am somewhat skeptical about the Kansas legislation as well. Here’s what the Huffington Post (itself a source of questionable neutrality) has to say:
A Kansas House committee is scheduled to take up a bill Wednesday that would exempt doctors from malpractice suits if they withheld medical information to prevent an abortion. The measure would also take away tax credits for abortion providers, remove tax deductions for the purchase of abortion-related insurance coverage and require women to hear the fetal heartbeat. The bill includes several provisions, which passed in other states and now face federal lawsuits. The bill would also require women be told about potential breast cancer risks from abortions, even though medical experts discount such a connection.
[snip]
Among the most contested provisions of the bill is the section that would exempt a doctor from a medical malpractice suit if a woman claims the physician withheld information about potential birth defects to prevent her from having an abortion. In addition, a woman would not be able to sue if she suffers health damage from a pregnancy as a result of information withheld from her to prevent an abortion. A wrongful death suit could still be filed, however, if the mother died.
The Kansas bill looks to be quite sweeping in its restrictions, but I still have trouble seeing where doctors are given sanction to deliberately withhold information from their patients. Which makes me wonder if the ACLU post is misrepresenting what both the Kansas and Arizona bills say. I cannot seem to find the full texts of either bill online, and if anyone knows how to do so and can throw me a link in the comments I’d be much obliged.
Maybe I’m impossibly naive, but I have a very hard time believing that even the staunchest opponent of abortion would specifically allow doctors to lie to their patients. OK, sure, there’s probably a lunatic or two out there who would, but is there a critical mass of said lunatics in both the Kansas and Arizona statehouses? Lying to your patients is flagrantly unethical, and I sincerely hope that every doctor who takes care of pregnant women in those states would recoil from doing so. Respect for a patient’s autonomy is a cornerstone of medical ethics, and it flies in the face of everything I was taught in medical school to do what these reports claim would be allowed. What would follow? Withholding information about painful or progressive illnesses because you feared the patient would opt for euthanasia?
If I’m wrong to be suspicious about whether those bills really say what’s being reported, I truly would want to know. No doctor who would lie to his or her patients deserves to take care of anyone, and no state should allow for it under any circumstances (with the obvious exception that small children should be given information judiciously). I simply can’t believe that either Kansas or Arizona would.
[Update: Thanks to sonmi451 for finding what appears to be the text of the bill in question, which is posted in the comments below. To my inexpert reading, it looks like a pretty stupid, poorly-written bill. It does seem pretty clear that intentional or grossly negligent omissions on the part of medical providers would still be subject to a tort suit, which belies the way it’s being presented in some of the links I mention above. But it doesn’t stipulate what kind of omissions are protected, since to my mind any omission of relevant medical information is evidence of negligence. Any lawyers in these parts who’d like to offer an opinion *polite cough* are explicitly invited to do so.]
I did some Googling on Kansas’s bill, and found the following:
http://hutchnews.com/Localregional/BC-KS-XGR–Abortion-1st-Ld-Writethru–1-20120308-21-11-46
The Lawrence Journal-World reported Thursday that the provision in question would not allow any state employee to perform abortions, which could have implications for medical residents at the University of Kansas. Residents studying to be obstetricians and gynecologists are required to have the training.The Lawrence Journal-World reported Thursday that the provision in question would not allow any state employee to perform abortions, which could have implications for medical residents at the University of Kansas. Residents studying to be obstetricians and gynecologists are required to have the training.
http://www.tonganoxiemirror.com/news/2012/mar/12/abortion-bill-brings-more-just-tax-issues/
The bill also requires the physician to inform a woman seeking an abortion about the risks of abortion on premature birth in future pregnancies and breast cancer.
http://onesearch4-2.newsvine.com/_news/2012/03/08/10615082-kansas-abortion-bill-could-raise-taxes-on-women-seeking-procedure-including-rape
Under the proposal, women who end up receiving abortions would not be able to deduct the cost of the abortion as a health care expense if they had not purchased special abortion insurance,
The bill would also levy a sales tax on abortion procedures, including those performed for rape victims, according to both Gillooly and Rep. Sean Gatewood (D-Topeka), the bill’s leading opponent. The Kansas Department of Revenue’s website says the state has a 6.3-percent sales tax.
The impression I get is that the bill consists of everything the author could think of to make abortion unavailable.
I agree that the bill is incredibly restrictive, and includes provisions that are deeply coercive (including the false breast cancer link). I don’t actually support the bill, and find much to object to within it.
But it doesn’t look like it actually allows doctors to lie to their patients, which is how it is being represented by the ACLU blog and Raw Story.
It looks to me like it requires them to lie about the additional risk of breast cancer. But not, as you say, about fetal abnormalities.
Were I a provider of prenatal care in Kansas (which I am happy not to be, on both counts), in the case of this bill’s passage into law I would say something like “there have been reports of a link between abortion and breast cancer, which I am required by law to mention to you. Those reports are widely considered inaccurate, and as your doctor I would not consider them a valid basis for making a recommendation to you today.”
Difficult to tell whether that satisfies the letter of the law without seeing the text.
I would be unable to comply fully with any law that required me to say something contrary.
Honestly, that went without saying. My doubt is about the law, not about you.
Excellent work, Doc. What you describe certainly makes more sense than the way it is being reported by Huffington. Honestly, sometimes I think someone needs to grab the media by the collar and ask them if they have those in suede.
It’s obvious to me that they’re still frying in lard.
Thank you for keeping a cool head and checking this out. As you say, it’s not a bill I’d support, but it’s not a freakin’ outrage against any sane person’s tenets of medical ethics.
What if the fetus, if delivered, would have a short, painful life? Shouldn’t there be a requirement to tell the mother about that? Not all omissions are created equal.
I think this is the bill – SB1359
http://www.azleg.gov/DocumentsForBill.asp?Bill_Number=SB1359&Session_ID=107
There’s an Introduced Version and a Senate Engrossed Version, I’m guessing the latter is the bill that was passed?
http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/50leg/2r/bills/sb1359s.htm&Session_ID=107
———————————————————————————————————-
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 6, article 12, Arizona Revised Statutes, is amended by adding section 12-718, to read:
START_STATUTE12-718. Civil liability; wrongful birth, life or conception claims; application
A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.
C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.END_STATUTE
Rescued!
Shoot, I forgot comment goes into moderation for more than one link. Try again.
I think this is the bill – SB1359
There’s an Introduced Version and a Senate Engrossed Version, I’m guessing the latter is the bill that was passed?
http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/50leg/2r/bills/sb1359s.htm&Session_ID=107
———————————————————————————————————-
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 6, article 12, Arizona Revised Statutes, is amended by adding section 12-718, to read:
START_STATUTE12-718. Civil liability; wrongful birth, life or conception claims; application
A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.
C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.END_STATUTE
How is that a law? What constitutes a gross negligent act or omission, as opposed to just a regular one? This actually is quite scary.
Can an act of omission ever be “unintentional”? If you know something, and decide not to tell the parents for whatever reason, isn’t that the definition of “intentional omission”?
“oops. kinda forgot to mention that you might be pregnant.”
So there are acts of omission — got a lab result back, read it, didn’t mention it. You can do that intentionally (I am NOT going to tell her), or it can slip your mind. Of course, you gotta prove that it slipped your mind. in court.
“It slipped my mind” would, in my opinion, constitute negligence.
Dr. Russ,
Yes, but would that be gross negligence?
The bill seems such a vague mess that I’d imagine any halfway decent med mal lawyer would still be able to make a decent case, were a pertinent lab value kept from patients using a “whoops-a-daisy!” defense.
Unless they are strictly defining “an act of omission” as the failure to perform tests that are NON-standards to detect abnormalities in the fetus. I can understand protecting doctors from being sued based on that, but the language is very broad here. What if the doctor decides not to perform the standard tests because it may reveal abnormalities? Or not tell the pregnant woman that these are the standard tests she should get?
Sorry to sound like a broken record, but in my opinion failing to perform a test that is considered the standard of care would be grossly negligent, and thus still subject to legal action.
Okay, that is reassuring. So I actually don’t see how this law has any teeth whatsoever. Because the only wrongful birth suits I’ve read about have involved gross negligence.
But isn’t the purpose of the trial to determine whether there WAS gross negligence? Maybe this is a stupid question, I’m not a lawyer, but what is the mechanism for determining who can and cannot bring suit? Another trial? Or is this law more directed to the judges and juries, instructing them that they cannot decide in favor of the plaintiff unless the plaintiff has proven gross negligence?
Indeed, it is the purpose of a trial. And since nothing in the bill seems to prevent suits from being filed, it would be up to a jury — just like before. In short, to me the bill seems wholly meaningless in actual practice.
And this is the link to the whole thing, amendments, bill sponsors, etc
http://www.azleg.gov/DocumentsForBill.asp?Bill_Number=SB1359&Session_ID=107
Here’s the text:
http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/50leg/2r/bills/sb1359p.htm&Session_ID=107
It’s like we’re psychic!
Yeah, but you’re more psychic — I linked to the original, unamended bill. You definitely win.
I just wanted to say, in my line of work, I hear the “whoopsie daisy!” defense all the time.
It’s amazing how often people get away with it.
Just a quick note of fact: The introduction of fetal heart rate monitors is associated with a sharp increase in the rate of cesearean-section deliveries.
When you understand why that is, you’ll understand why a bill like this might be needed.
Appreciated your looking under the hood of the truly outrageous claims being made about these bills.
As a practicing trial attorney, they are apparently designed to do two things–
1. limit negligence actions for a (IMNHO) rather dubious form of med-mal; and
2. cut back on a lot of defensive medical tests and procedures
The idea these bills are intended to shield a doctor driven by ideology is loopy.
I do both prosecution and defense of civil law, including (in the past) med-mal in Texas. I have mixed feelings about the tort reform in my state, which has had the effect of making med-mal a very specialized legal practice.
The “standard of care” (which the Doc can address) is where med-mal lives. IF a practitioner in any profession (or even trade) deviates from it, they open themselves up to liability. IF they adhere to it, I have a record of getting any case against them poured out in summary judgment (a quick, inexpensive way of disposing of meretricious lawsuits).
An INTENTIONAL act…such as lying to your patient…is beyond med-mal, and gets into the area of fraud. You also have the whole ambit of fiduciary duties, which arise out of special relationships.
Because of such infamous lawyers as John Edwards, and the enormous emotional charge of cases involving the death or disability of a newborn child, lawmakers have tried to fashion responses that shield care-givers from liability stemming from suits base on “what they MIGHT have done”, which often attempt to implicate every stinking thing in the whole medical arsenal. Anyone can see (I hope) that defending against such a legal liability theory would involve hugely expensive “butt-coverage” practice on the part of care-givers, even if they misapprehend their own risks (as is common among docs and nurses, in my experience).
Humans were made to reproduce successfully and with good results for all concerned, and the vast majority of children are born without the need for a lot of intervention. Still, stuff happens, and sometimes nobody can see it coming, as good as our medical science is.
[admendment] http://kslegislature.org/li/b2011_12/measures/documents/fisc_note_hb2035_00_0000.pdf
[Full amended bill] http://kslegislature.org/li/b2011_12/measures/documents/hb2035_00_0000.pdf
Some highlights:
“The bill would change the word “fetus” to “unborn child”
“consent information for the pregnant woman would include a disclosure of the fact that abortion terminates the life of a whole, separate, unique, living human being;” – regardless of WHEN the procedure is taking place
“Under Sec. 5. K.S.A. 2010 Supp. 65-6709, physician has informed the
woman of:” A whole list of things including
“probable anatomical and physiological characteristics of the fetus unborn child”
“the abortion will terminate the life of a whole, separate, unique, living human being.”
and “offers the woman the opportunity to view the ultrasound image and receive a physical picture of the ultrasound image;”
Though the closest thing I can find (in a quick read through) to letting a doctor lie is “No person shall perform or induce an abortion when the fetus unborn child is viable unless such person is a physician and has a documented referral from another physician”
So you are forced to get a second opinion. I’ll try to read through it more carefully tomorrow though.