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 -
America is the land of opportunity, just for some more than others.
That's because, in large part, inequality starts in the crib. Rich parents can afford to spend more time and money on their kids, and that gap has only grown the past few decades. Indeed, economists Greg Duncan and Richard Murnane calculate that, between 1972 and 2006, high-income parents increased their spending on "enrichment activities" for their children by 151 percent in inflation-adjusted terms, compared to 57 percent for low-income parents.
But, of course, it's not just a matter of dollars and...
Matt O'Brien | The Washington Post 20 Oct 2014 Hits:913 ESJ Articles
Three True Stories
Renee Delisle was one of over 3500 homeless people in Santa Cruz when she found out she was pregnant. The Santa Cruz Sentinel reported she was turned away from a shelter because they did not have space for her. While other homeless people slept in cars or under culverts, Renee ended up living in an abandoned elevator shaft until her water broke.
Jerome Murdough, 56, a homeless former Marine, was arrested for trespass in New York because he was found sleeping in a public housing stairwell on a cold...
Bill Quigley | Common Dreams 20 Oct 2014 Hits:746 ESJ Articles
Imagine a system of college education supported by high and growing government spending on elite private universities that mainly educate children of the wealthy and upper-middle class, and low and declining government spending on public universities that educate large numbers of children from the working class and the poor.
You can stop imagining. That's the American system right now.
Government subsidies to elite private universities take the form of tax deductions for people who make charitable contributions to them. In economic terms a tax deduction is the same as government spending. It...
Robert Reich | Huffington Post 20 Oct 2014 Hits:376 ESJ Articles
It was an ordinary Friday. Courtney Brown, 24, of Kalamazoo, Mich., was busy looking for a job. "I've applied all kinds of places," she says. "Wal-Mart, Target, Verizon Wireless."
Then she got a strange letter in the mail. " 'We are writing you with good news,' " she reads to me over the phone. " 'We got rid of some of your Everest College debt. ... No one should be forced to mortgage their future for an education.' "
The letter went on to say that her private student loan from a...
Anya Kamenetz | NPR 05 Oct 2014 Hits:653 ESJ Articles
For-profit education company Corinthian Colleges Inc. misled students into taking out unaffordable loans by falsely advertising job prospects, then used illegal debt collection tactics to force distressed students to pay up, according to a lawsuit filed Tuesday by the U.S. Consumer Financial Protection Bureau.
Corinthian owns Everest Institute, Everest College, WyoTech and Heald colleges, which collectively have more than 70,000 students and annually receive $1.4 billion in federal financial aid. The company is winding down all its operations in an agreement with the U.S. Department of Education.
The CFPB alleges that Corinthian...
Shahien Nasiripour | Huffington Post 21 Sep 2014 Hits:578 ESJ Articles
Some workers at oil and gas sites where fracking occurs are routinely exposed to high levels of benzene, a colorless gas that can cause cancer, according to a study by the National Institute for Occupational Health and Safety.
The agency, which is part of the Centers for Disease Control and Prevention, recommends that people limit their benzene exposure to an average of 0.1 of a part per million during their shift. But when NIOSH researchers measured the amount of airborne benzene that oil and gas workers were exposed to when they...
12 Sep 2014 Hits:751 ESJ Articles
When we look back on what happened in Ferguson, Mo., during the summer of 2014, it will be easy to think of it as yet one more episode of black rage ignited by yet another police killing of an unarmed African American male. But that has it precisely backward. What we’ve actually seen is the latest outbreak of white rage. Sure, it is cloaked in the niceties of law and order, but it is rage nonetheless.
Protests and looting naturally capture attention. But the real rage smolders in meetings where officials...
Carol Anderson | The Washington Post 01 Sep 2014 Hits:1015 ESJ Articles
Last week, after days of violent police rampages in Ferguson, Missouri, Senate Armed Services Committee Chairman Carl Levin (D-Michigan) said the Senate will "review" the Defense Department program that gives military weapons and equipment to civilian police departments for free.
It took five apocalyptic nights in Ferguson for Levin to make that statement, but the national dialogue on the militarization of police has begun.
Only it didn’t just take Ferguson. It took years of violent arrests. Exposés that revealed small towns being patrolled by tanks and big cities controlled by force. Rampant...
Nadia Prupis | Common Dreams 28 Aug 2014 Hits:896 ESJ Articles
We met Carolina while visiting a “welcome center” for recently-processed immigrants at Sacred Heart Catholic Church in McAllen, Texas. She emerged from a sweltering relief tent that sheltered a handful of other fatigued travelers, most of whom, like her, had been released by Border Patrol just hours prior. She stood what couldn’t have been more than five feet tall, but her weary eyes hinted at her age. She looked tired, but then, she should: she reportedly had just finished a journey of more than a thousand miles, and still had...
Jack Jenkins and Esther Yu-Hsi Lee | Think Progress 03 Aug 2014 Hits:916 ESJ Articles
When a coup removed the democratically-elected leftist president of Honduras in June 2009, receiving tacit support from the U.S. State Department, the American people barely took notice. Then when the United States increased military funding in its little protectorate to reinforce the new right-wing regime installed there, the American public still remained largely unaware and unconcerned. Even after it was reported that Honduras had become “the most dangerous country in the world” a year after the coup (it still is), and that a campaign against drug cartels in Mexico had made...
Hector Luis Alamo, Jr | Latino Rebels 03 Aug 2014 Hits:2105 ESJ Articles
The just-released results of a six-month initiative by the American Federation of State, County and Municipal Employees (AFSCME) suggest that the dark cloud cast over public sector unionism by a recent Supreme Court decision may not be so threatening after all.
Many analysts saw the court’s ruling last month in Harris v. Quinn as a profound blow to public sector unions such as AFSCME. In a case involving workers who receive state funds to provide home care for people with disabilities, the court found that the Service Employees International Union (SEIU) could not...
David Moberg | In These Times 20 Jul 2014 Hits:495 ESJ Articles
The New York Times reported that one national employer relied on the labor of more than 60,000 immigrant workers last year to cook, clean, and do laundry while living behind locked doors and barbed wire. The employer paid them only $1 per day – or in some cases, compensated them with nothing more than soda and candy bars. In one facility, people who organized a work stoppage and hunger strike were thrown into solitary confinement.
Yet when asked to comment, federal authorities claimed that this is all completely legal and none...
Carl Takei | ACLU Blog of Rights 29 Jun 2014 Hits:519 ESJ Articles
Forget Wisconsin Gov. Scott Walker and his fellow union-bashing governors. Forget the partisan Republican attacks on organized labor. The gravest threat today to public-employee unions—which represent cops, firefighters, prison guards, teachers, nurses, and other city and state workers—is a Supreme Court case named Harris v. Quinn, which could be decided as early as this Tuesday. And, strangely enough, it is the court's most sharp-tongued conservative, Justice Antonin Scalia, who could ride to organized labor's rescue.
The case pits several of the nation's mightiest labor unions, such as the Service Employees International...
Andy Kroll | Mother Jones 03 Jun 2014 Hits:806 ESJ Articles
SSA Bargaining Unit Employees:
SSA is now seeking your ideas for a Vision 2025 plan. What SSA is not telling you is that they already have a draft plan that is a product of the Academy with the framework of that plan given to the Academy by SSA leadership.
The draft plan has certain principles that we cannot agree with. First it states that the basis for a Vision for 2025 must be that online services are the primary means for delivering customer service. This is a change from SSA's long time...
Witold Skwierczynski | National Council of Social Security Administration Field Operations 31 May 2014 Hits:577 ESJ Articles
The unseen hand of antigovernment ideology can be found everywhere nowadays – even in your mailbox. The proof is in what you won’t find there, like your annual statement of earned Social Security benefits.
The government stopped mailing those out in 2011.
It’s also getting a lot harder to find Social Security field offices, or to find someone to pick up the phone, as the Social Security Administration enters into yet more rounds of steep budget cuts.
Social Security customer service: Now you see it, now you don’t.
The Most Efficient Benefit Program in...
Richard Eskow | Campaign for America's Future 31 May 2014 Hits:941 ESJ Articles
The Charlotte economy is improving, but a number of residents pleaded with the Charlotte City Council on Monday, asking that the city not forget those without jobs and low-wage city workers.
As part of the public hearing on the city’s proposed fiscal year 2015 budget, a group called Coalition for Jobs asked council members for $10 million in seed money for a jobs subsidy program.
The group hopes to find jobs for 1,000 long-term unemployed residents. The jobs would pay $10 an hour, and would be subsidized at different amounts for six...
Steve Harrison | Charlotte Observer 14 May 2014 Hits:598 ESJ Articles
Student loan debt in the U.S. currently totals more than $1 trillion, with some predicting it will only get worse as tuition increases continue to outpace inflation. Recently launched federal student loan forgiveness programs were intended to provide relief to some of these borrowers, but the plans’ unexpected popularity has created a new set of concerns.
With tuition costs rising by an average of 6% each year over the last decade and students graduating with an average of $29,000 in student loan debt, which can prevent consumers from making big purchases...
Ashlee Kieler | Consumerist 03 May 2014 Hits:982 ESJ Articles
Four out of 5 U.S. adults struggle with joblessness, near-poverty or reliance on welfare for at least parts of their lives, a sign of deteriorating economic security and an elusive American dream.
Survey data exclusive to The Associated Press points to an increasingly globalized U.S. economy, the widening gap between rich and poor, and the loss of good-paying manufacturing jobs as reasons for the trend.
The findings come as President Barack Obama tries to renew his administration's emphasis on the economy, saying in recent speeches that his highest priority is to "rebuild...
CBS News 30 Mar 2014 Hits:804 ESJ Articles
According to the stock market, the U.K. economy is in a boom. Not just any old boom, but a historic one. On 28 October 2013, the FTSE 100 index hit 6,734, breaching the level achieved at the height of the economic boom before the 2008 global financial crisis (that was 6,730, recorded in October 2007).
Since then, it has had ups and downs, but on Feb. 21, 2014 the FTSE 100 climbed to a new height of 6,838. At this rate, it may soon surpass the highest ever level reached since the index...
Ha-Joon Chang | The Guardian 01 Mar 2014 Hits:958 ESJ Articles
Last year, America placed next to last in a ranking of child well-being in 35 developed countries, barely beating out Romania. A recent report by the Children's Defense Fund helps explain how the US earned that distinction. According to the report, 1-in-5 American children live in relative poverty. Close to half of poverty-stricken kids live in extreme poverty, which means their families earn less than half the poverty level of $11, 746 per year for a family of four.
Since the Great Recession began in 2009, there's been a 73 percent jump in...
Tana Ganeva | AlterNet 20 Feb 2014 Hits:3024 ESJ Articles
All eyes are on Chattanooga, Tenn. as 1,500 Volkswagen workers file into voting booths this week to determine whether they will be represented by the United Auto Workers.
Unlike most U.S.-based employers, Volkswagen has remained neutral on the question of unionization, in part hoping that its workers could then legally form a works council like other VW workers around the world. Tennessee Gov. Bill Haslam (R) and U.S. Senator Bob Corker (R-Tenn.) are trying to convince the workers to vote no, and some local elected officials are now threatening to yank...
Lane Windham | Facing South 14 Feb 2014 Hits:660 ESJ Articles
In Manhattan, the upscale clothing retailer Barneys will replace the bankrupt discounter Loehmann’s, whose Chelsea store closes in a few weeks. Across the country, Olive Garden and Red Lobster restaurants…
You'd think debate on the merits of raising the minimum wage would have been settled long ago. After all, it's been around for 75 years in the United States, and…
Where have all the Democrats gone?
It’s hard to imagine a better gift falling into their laps: Republicans have just thrown 1.3 million unemployed Americans out into the cold and are prepared…
In yet another constitutional rejection of mandatory drug testing, a federal judge this week struck down Florida’s program to require drug testing of all applicants for public assistance through the…
For many years the American Right -- and many of the most powerful elements of corporate and Wall Street elite -- have conducted a war on public employees.
Their campaign has…
Barbie Izquierdo, a low-income mother of two small children, is a member of Witnesses to Hunger, a Philadelphia group of moms dedicated to ending hunger and poverty for their children…
Authors of new report warn food donations not enough as six million threatened with worsened hunger
'Tis the season to give, the saying goes.
Yet all of the charitable food donations in…
A key dispute in the TPP negotiations is the patents on pharmaceutical drugs and medical procedures. Long patents inflate the profits of the pharmaceutical industry by not allowing less expensive…
This piece is a follow-up to Linda's first post, "This Is Why Poor People's Bad Decisions Make Perfect Sense":
At this point, enough people are asking that I will tell you…
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