Among the new restrictions appearing in anti-choice bills nationwide, it is the medical malpractice liability shields that have the potential to alter, perhaps permanently, women’s relationship with the civil justice system.
In both Kansas and Arizona measures are advancing that exempt doctors from medical malpractice suits should they withhold medical information in order to prevent a woman from having an abortion. These bills also shield doctors from malpractice claims if a woman suffers an injury from a pregnancy as a result of information withheld from her to prevent an abortion. Georgia just snuck a liability shield into their 20-week abortion ban. We can expect more to follow.
Proponents of these "wrongful birth" bills argue they are necessary to stem the tide of lawsuits like one in Oregon where parents sued for costs related to the care of their daughter who was born with Down's Syndrome. In that case the parents argued that the medical professionals were negligent in conducting the genetic testing, and that had they known their daughter would be born with a disability, they would have had an abortion.
This is the kind of case that is destined to generate lots of headlines and some terrible legislation in its wake. In reality, less than half the states recognize a claim for wrongful birth and in those states that do, cases like this one are rare and these kinds of verdicts ever rarer. Nevertheless, anti-choice activists see an opening, and they are going to take it.
So far none of these malpractice shield has been signed into law in Kansas, Arizona, or Georgia. But assuming they do, the impact on medical malpractice law and on the ability of women to be justly compensated should they be the victim of sub-standard medical care cannot be overstated.
In order to successfully prosecute a claim for medical malpractice, a plaintiff needs to prove that a medical professional violated the standard of care in delivering medical advice or care. This is no easy task. Determining what the standard of care is requires an objective look at the standard practices of similar professionals in similar situations and a comparison of the care delivered in the specific case at hand. Expert testimony is almost always required from other medical professionals as to what course of treatment and advice was indicated given the specifics of a patient’s case.
The standard of care is considered, roughly in legal standards, to be the average care a patient can expect to receive. The care doesn't need to exceed this standard but it can't slip below it without it being considered negligence and without doctors and hospitals being held liable for any injuries that come from that negligence.
Wrongful birth bills change all this. With these provisions dictating a specific course of treatment in the case of withholding information to drive a particular medical outcome the standard of care is essentially set by legislators. Say goodbye to a community of medical professionals determining best medical practices.
In practice this means that instead of an objective inquiry into the medical treatment and advice given to a pregnant woman based on what the profession as a whole considers competent medical treatment, the individual beliefs of the doctor will determine if advice given or care rendered was reasonable. In legal terms that changes the inquiry from objective to subjective meaning; there is no real basis to judge conduct against. It will no longer matter what a doctor’s peers believe to be considered good medical care: it will only matter if that particular doctor thought the care would avoid an abortion.
Furthermore, that inquiry won't be focused on advice given or care rendered in the scope of protecting the health and life of the mother, but instead on decisions and care motivated solely to perpetuate a pregnancy. This erases the mother as primary patient to at best, a secondary consideration. What the medical community considers to be competent advice and care will cease to be relevant as the only concern will be: did this individual doctor make this individual decision based on his or her individual desire to prevent an abortion? In no other area of tort law do we allow this. And for good reason.
That’s because tort law is designed to compensate victims in the case of others negligence. These malpractice shields presume that withholding information from patients to impact a decision regarding care is an act of negligence. The bill itself proves the point. If providing medical advice based on personal moral beliefs instead of medically evidenced-based indicia was not considered medical malpractice shielding doctors from malpractice would be unnecessary.
The impacts on patient care will also be long-term. One of the effects of tort reform--and these malpractice shields are another form of tort reform-- is to weed out dangerous and ineffective medical practices. Instead of providing women with all information necessary so they can make an informed medical decision, the standard of care will be to make that decision for them, no matter what that decision happens to be. That means the persuasive force of tort reform will no longer exist in regards to reproductive health care in these states. In fact, these bills could have the opposite effect as the aspect of community review that takes place in determining a standard of care will become irrelevant. Bad doctors will be permitted to continue practicing bad medicine with no consequences, nor any threat of consequences.
That also means that women in states with wrongful birth bills can never be sure the medical information they are receiving is accurate and unbiased, nor can they sue in the event that its wrong or negligent. And that women in states without these bills will have to exercise even more caution and be even greater advocates for their own care as what constitutes good accepted medical practice is no longer easily determinable.
Pregnant women will, in effect, be returned to the same legal standing of juveniles or persons under legal guardianship and conservatorship, devoid of the ability to consent to a full course of medical treatment on their own.
The impact of these bills will also reach far beyond just abortion politics. Birth injury cases represent a significant portion of medical malpractice cases in general, in large part because the costs associated with an act of negligence in pregnancy and delivery are so great. Insurance companies generally (and usually successfully) fight coverage for those costs meaning that malpractice recoveries often represent the only financial means of providing for a disabled child. These wrongful birth bills will allow those claims to go uncompensated, because all health care professionals will need to do to avoid liability in any case is to justify their course of treatment in terms of seeking to prevent an abortion.
The creation of a medical malpractice shield simply strips women of the ability to be compensated for sub-standard medical care rendered to them while pregnant and nothing more.
Couple wrongful birth bills with the federal medical malpractice bill that just passed the House of Representatives and it becomes clear that this push to strip women of the ability to challenge substandard medical care they receive is seen as the solution to that pesky legal reality that women's bodies receive any legal protections to begin with. And since medical malpractice claims are always claims for money damages, there is no more straightforward a way to say that women's lives have no value then to take away their ability to bring a claim based on the value of that life to begin with.
Follow Jessica Mason Pieklo on Twitter, @hegemommy
Economic and Social Justice -
Tennessee congressman Stephen Fincher is very angry that the federal government is committed to preventing poor people from starving to death:
Stephen Fincher, a deranged Republican congressman from Tennessee, is very angry that the federal government is committed to preventing poor people from starving to death: Republican Congressman Stephen Fincher of Tennessee, who supports cuts to the program, had his own Bible verse from the Book of Thessalonians to quote back to Vargas: “The one who is unwilling to work shall not eat,” he said.
The program in question is SNAP, better...
Justin Doolittle |Alternet 22 May 2013 Hits:171 ESJ Articles
The latest in "healthy" foods that are not actually good for us is Greek yogurt. Over at Modern Farmer, Justin Elliott explains that every three to four ounces of milk produces only one ounce of the creamy snack, and what's left becomes acid whey, " a thin, runny waste product" too toxic to dump because whey decomposition could potentially turn waterways into aquatic-life-destroying "dead seas."
Now, with a rapidly expanding $2 billion Greek yogurt market, the question has become, what to do with the whey? According to Elliott, the Northeast region alone produced...
Kristen Gwynne | AlterNet 22 May 2013 Hits:323 ESJ Articles
Tribal leaders trucked the battered old home to Washington to show the nation’s leaders what the housing crisis on reservations looks like in person.
Last month, a new building joined the Washington Monument and the Capitol building on the National Mall. The small, run-down shack had previously housed 13 people, and it was brought to Washington, D.C., from the Pine Ridge Indian Reservation in South Dakota to raise awareness about the critical need for housing on reservations around the country.
"It's very difficult to get anybody to leave Washington to see it...
Mark Andrew Boyer | Yes Magazine 20 May 2013 Hits:97 ESJ Articles
Frustration with the failed execution of various weakly-constructed legal settlements stemming from widespread foreclosure fraud bubbled over today into a protest at Justice Department headquarters that culminated in homeowners being arrested.
Using tactics and rhetoric familiar from 2011’s Occupy Wall Street demonstration, a group of activists and foreclosed homeowners marched on the Justice building in downtown Washington, D.C. According to tweets and photographs from activists on the scene, protesters moved past a police barricade and attempted to establish a sit-in, at which point police began arresting homeowners and activists.
Why the renewed...
Alan Pyke | ThinkProgress 20 May 2013 Hits:117 ESJ Articles
The Transatlantic Trade and Investment Partnership is the latest plan of conglomerates to strengthen their grip over the planet.
A corporate world order is emerging, and like any parasite, it is slowly killing off its host. Unfortunately, the "host" happens to be the planet, and all life upon and within it. So, while the extinction of the species will be the end result of passively accepting a corporate-driven world, on the other hand, it’s very profitable for those corporations and their shareholders.
The Transatlantic Trade and Investment Partnership (TTIP) is the latest...
Andrew Gavin Marshall | AlterNet 12 May 2013 Hits:151 ESJ Articles
The US-EU free trade pact and the Trans-Pacific Partnership are about securing regulatory gains for major corporate interests.
In polite circles in the United States, support for free trade is a bit like proper bathing habits: It is taken for granted. Only the hopelessly crude and unwashed would not support free trade.
There is some ground for this attitude. Certainly, the US has benefited enormously by being able to buy a wide range of items at lower cost from other countries. However, this does not mean that most people in the country...
Dean Baker 02 May 2013 Hits:162 ESJ Articles
Wage theft is fast becoming a top trend of the 21st-century labor market.
Imagine you’ve just landed a job with a big-time retailer. Your task is to load and unload boxes from trucks and containers. It’s back-breaking work. You toil 12 to 16 hours a day, often without a lunch break. Sweat drenches your clothes in the 90-degree heat, but you keep going: your kids need their dinner. One day, your supervisor tells you that instead of being paid an hourly wage, you will now get paid for the number of...
Lynn Stuart Parramore | AlterNet 28 Apr 2013 Hits:805 ESJ Articles
Hundreds of New York City's lowest-paid workers walked off the job Thursday at over 60 of the city's fast food restaurants to say, "We deserve better."
In what people are calling the largest ever protest of its kind, over 400 workers from the country's biggest corporate "food" chains—including McDonald’s, Wendy’s, Pizza Hut, and KFC among others—took part in the action.
“We deserve better," said Glenda Soto, a McDonald's worker. "I work very hard. I’m a single mom, I have 3 kids, and on $7.25 an hour I can’t support them, and I...
Lauren McCauley | Common Dreams 04 Apr 2013 Hits:298 ESJ Articles
The proposed cuts now on the table could be seriously bad news for young people planning to enter the workforce in coming years.
For most teens and twentysomethings, the raging debate in Washington over Social Security reform probably seems as relevant and engaging as PBS’s Friday night lineup of Antiques Roadshow and Jerry Lewis: Live from Las Vegas.
But the proposals on the table could be seriously bad news for young people planning to enter the workforce in coming years.
President Obama has offered to break the sequester gridlock by recalculating inflation in a way...
Scott Klinger | AlterNet 24 Mar 2013 Hits:452 ESJ Articles
Millennials have accumulated less wealth since entering the workforce than their parents did at the same age, even as the economy has grown and the average wealth of Americans has doubled.
When Vernardo and Claire Simmons-Valenzuela married, they imagined all the trappings of a middle-class life. Soon enough, they had kids. Claire finished a master's degree. They held jobs as an Army medic and a physician's assistant. They dreamed of next steps: owning a home, taking their first vacation in years. Vernardo would return to school for a bachelor’s in nursing....
Zach Duffy | Campus Progress 23 Mar 2013 Hits:499 ESJ Articles
Ramon Suero fell behind on his mortgage payments after he got fired for organizing a union.
Suero, a hotel worker and UNITE HERE Local 26 member in Boston, got his job back after a year. But then his wife had to quit hers and travel to the Dominican Republic to care for her sick mother—and they fell further behind.
They applied to modify their home loan, but federally sponsored mortgage company Freddie Mac said no, foreclosed, and demanded the family get out by February 1.
The Sueros aren’t...
Alexandra Bradbury | Labor Notes 18 Mar 2013 Hits:309 ESJ Articles
Leaving her husband became the only option for "Stacy" after he became violent with the children. She returned to her hometown, Las Cruces, NM, with her 5 little boys in tow. Other than lacking an emergency family shelter, this is a pleasant mid-sized city. The family stayed for a while at the domestic violence shelter. Her time there ended without her finding housing, and she scrambled for a desperate, stopgap solution: her mother’s old, tiny camper.
For $300 a month, including utilities, the family could park their leaky camper in a park in her town. She...
Diane Nilan | AlterNet 18 Mar 2013 Hits:532 ESJ Articles
Debates over the fairness of the tax code are as old as the federal income tax itself. A cornerstone of the tax — established a century ago, by the 16th Amendment — has been the principle that those who make more should pay more, while lower tax rates help the poor to support their families and depend less on government benefits.
That social compact shifted into high gear during the Nixon administration, which tried to incentivize work by rewarding low-income households with a tax break that became the nation’s most successful...
KATHERINE S. NEWMAN | The New York Times 13 Mar 2013 Hits:402 ESJ Articles
The Bureau of Labor Statistics (BLS) reported a large increase in jobs in February as compared to January. At the same time the January jobs data was revised lower, which gave a boost to the February number. Let’s look at what happened to the people behind the numbers.
This graph shows two sets of data: the Employment to Population ratio and the Labor Force Participation rate. These are updated with February data.
They show that the percent of the population employed has not changed in February....
Randy Shannon | PDA Pennsylvania 10 Mar 2013 Hits:206 ESJ Articles
AFT President: "This is not about how to fix public schools, but to close them."
Philadelphia is going to shutter 23 public schools following a vote Thursday night by the School Reform Commission, despite an emotional protest and numerous arrests, exemplifying the city's continued embrace of privatized school reform at the mercy of the public school system.
Critics of the closures point to the disproportionate number of minority children impacted, arguing that the move would further discourage students from enrolling in public schools, fueling a growing push towards...
Lauren McCauley | Common Dreams 08 Mar 2013 Hits:568 ESJ Articles
In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its...
Bill Clinton | The Washington Post 08 Mar 2013 Hits:394 ESJ Articles
Today the Dow Jones Industrial Average rose above 14,270 – completely erasing its 54 percent loss between 2007 and 2009.
The stock market is basically back to where it was in 2000, while corporate earnings have doubled since then.
Yet the real median wage is now 8 percent below what it was in 2000, and unemployment remains sky-high.
Why is the stock market doing so well, while most Americans are doing so poorly? Four reasons:
First, productivity gains. Corporations have been investing in technology rather than their workers. They get tax credits and deductions...
ROBERT B. REICH | ROBERT REICH 06 Mar 2013 Hits:394 ESJ Articles
When the Americans with Disabilities Act was signed into law almost 23 years ago, the idea of inclusion for people with disabilities was legally born. Ramps were built, infrastructure was redesigned and, for the first time, the law backed people with disabilities who demanded their right not to be blocked from physical access to facilities.
But more than two decades the ADA became law, the ideal of inclusion has yet to be fully realized. Because enforcement of the statute is largely complaint-based, many public businesses are still inaccessible for people in...
Reid Davenport | Open Secrets Blog 06 Mar 2013 Hits:346 ESJ Articles
California Teamsters are paying to lose their jobs because of a scheme called the California Twilight Enterprise Zone Program.The program allows businesses to receive tax breaks of $37,500 for each new employee they hire in one of California's 40 Enterprise Zones. The program encouraged two Teamster employers to dump their union workers, move to an Enterprise Zone, hire cheaper workers and get tax breaks in the bargain.One employer, Atlanta-based Blue Linx, is a building products distributor. And get this: it lists "safety, respect and learning" as its values for "People." VWR is...
Teamster Nation Blog 06 Mar 2013 Hits:402 ESJ Articles
Thank you for being among the over 400 organizations, representing more than 15 million Americans, that co-signed the letter to Congress expressing deep concerns about the proposed Trans-Pacific Partnership (TPP) and opposition to the outdated "Fast Track" trade negotiating and approval process.
Your joint letter was submitted to Congress today, and it couldn't have been more timely. The letter comes just one business day after the President included Fast Track in his 2013 Trade Policy Agenda, and the same day as negotiators from 11...
Arthur Stamoulis | Citizens Trade 04 Mar 2013 Hits:417 ESJ Articles
During the Great Recession, the wealth gap between whites and African-Americans nearly doubled, leaving white with nearly 22 times as much in household wealth. According to a new study from Brandeis University’s Institute on Assets and Social Policy, this merely exacerbated a much longer trend during which the wealth of whites exploded while that of African-Americans stagnated:
In 2009, a representative survey of American households revealed that the median wealth of white families was $113,149 compared with $6,325 for Latino families and $5,677 for black families.
Looking at the same set of families over a...
Pat Garofalo | Think Progress 03 Mar 2013 Hits:444 ESJ Articles
One spring afternoon, O. Perry Walker High School Principal Mary Laurie made her way to the school's courtyard, where a lone student sat at a picnic table with a large…
On Wednesday, the US Supreme Court will hear a case that has the potential to give big corporations free rein to write contracts that prevent consumers from ever holding them…
For the social compact of the United States, most of the Congressional Progressive Caucus has gone missing.
While still on the caucus roster, three-quarters of the 70-member caucus seem lost in…
Rebecca Williams has waited tables, on and off, for 30 years. A lot has changed since her first stint in the business ended in the early 1990s. Restaurants now tout…
Kathleen VonEitzen heads into work at 10 p.m. with a long night ahead of her. A trained baker, VonEitzen spends the evening and early morning hours cutting and shaping trays…
You may have seen charts like the one to the right from theEconomic Policy Institute, showing how working people’s wages stopped going up along with productivity gains.
This means the gains…
Changes in tax law that reduced the federal tax rate on capital gains income is “by far the largest contributor” to rising income inequality in the United States, according to…
CHICAGO - "Their story of enslavement and their escape started in the slums of Manila. Sleazy 'recruiters' scoured the streets and lured the workers here with assurances of plenty of…
Last October, Anthony M. Van Buren drove 135 miles south from his home in Charlottesville, Va., to the small town of Moneta in search of his former boss, Robert Brown,…
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PDA is organized around several core issues. These issues include:
Each team hosts a monthly conference call. Calls feature legislators, staffers and other policy experts. On these calls we determine PDA legislation to support as well as actions and future events.
Our special guest this month is Marc Armstrong, the Executive Director of the Public Banking Institute in California. Marc will be discussing the problems with our banking system and the possibility of public state-owned banks as a potential...
Monthly call with special guest, Cathy L. Hurwit, Chief of Staff for US Representative Jan Schakowsky (IL-09). Cathy will be discussing Rep. Schakowsky's Emergency Jobs Act, the CPC 'Back to Work Budget,' and other jobs legislation.
Special guest Arthur Stamoulis, the Executive Director of the Citizens Trade Campaign will discuss the urgent proximate issue in Congress of Fast Track legislation. He will review highlights of the Trans Pacific Partnership and how Fast Track...
CALL AGENDA: Lori Wallach provided background on the Trans-Pacific Partnership (TPP)--who's involved with it, who's opposing it--with special focus on Trade Unions. She'll also identify the key issues and timeline, and finally discuss next steps...
Logan Martinez, member of the National Jobs for All Coalition Executive Committee
Mike Hersh, PDA Staff Member
We will discuss:
how the fight for jobs is connected to the fight for equality,
the connection between...
Featured Guest - Mel Rothenberg from the Chicago Political Economy Group
Since the 2010 election PDA has worked to build a movement for economic and social justice around key legislation introduced by members of the Congressional Progressive...