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 -
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:162 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:211 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:468 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:238 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:645 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:309 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:545 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:560 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:695 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:2748 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:457 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 are struggling, while fine-dining chains like Capital Grille are thriving. And at General Electric, the increase in demand for high-end dishwashers and refrigerators dwarfs sales growth of mass-market models.
As politicians and pundits in Washington continue to spar over whether economic inequality is in fact deepening, in corporate America there really is no debate at all. The post-recession reality is that...
Nelson D Schwartz | New York Times 04 Feb 2014 Hits:547 ESJ Articles
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 it's been examined in countless academic and professional studies.
But the rhetoric rages on after President Barack Obama last week urged Congress to "give America a raise" by hiking the national minimum wage to $10.10 an hour from $7.25. And again when Gov. Pat Quinn advocated a raise in Illinois to $10 an hour from $8.25 during his State of the...
Gregory Karp | Chicago Tribune 02 Feb 2014 Hits:415 ESJ Articles
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 to cut off 3.6 million others who are out of work. At a time when the long-term unemployment rate remains near its highest level since the Great Depression and there are three job-seekers for every opening, this seems unusually cruel.
And this tops a full list of similar gestures: curtailing preschool for poor kids; cutting nutrition assistance for pregnant women and...
Dana Millbank | The Washington Post 07 Jan 2014 Hits:721 ESJ Articles
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 Temporary Assistance for Needy Families program. The ruling makes permanent an earlier ruling that blocked the program, and reinforces many other court rulings that drug tests targeting particular populations are unconstitutional if they are not specifically tailored to protect public safety or another state interest.
In this case, U.S. District Judge Mary S. Scriven rejected the notion that there is any...
Nicole Flatow | ThinkProgress 07 Jan 2014 Hits:527 ESJ Articles
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 taken many forms. They have tried to slash the number of public sector jobs, cut the pay and benefits of public sector workers, and do away with public employee rights to collective bargaining. They have discredited the value of the work performed by public employees -- like teachers, police and firefighters -- going so far as to argue that "real...
Robert Creamer | Huffington Post 09 Dec 2013 Hits:640 ESJ Articles
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 and for families nationwide. About a month ago while she was waiting in line at a supermarket, she overheard two families trying to make purchases with their food stamps debit card. A computer glitch had temporarily shut down the system; these families and their children of all ages had to leave the store empty-handed. Barbie had to be a witness...
Deborah Weinstein | Huffington Post 26 Nov 2013 Hits:607 ESJ Articles
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 the United States this year combined would not make a dent in proposed cuts to food subsidy programs that threaten at least six million people with worsened hunger.
So said researchers with the Bread for the World Institute in an interview with The Guardian published Monday.
“Virtually every church, synagogue and mosque in the country is now gathering up food and distributing,...
Sarah Lazare | Common Dreams 26 Nov 2013 Hits:692 ESJ Articles
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 generic drugs on the market. This means that people around the world will not be able to afford critical, often life-saving, drugs and medical procedures. It also means that countries like Japan, Australia and New Zealand that have national health care systems will see the cost of healthcare rise to a breaking point, undermining some of the best health systems...
Staff | Truthout 25 Nov 2013 Hits:734 ESJ Articles
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 about myself, because I am getting a lot of the same questions. I was raised middle class, by a factory worker and a teacher. They are my grandparents, and they are Mom and Dad. But I was given to them after I had lived with an overwhelmed mother and a father away in the Navy, and Mom has always been...
Linda Tirado | Huffington Post 25 Nov 2013 Hits:2378 ESJ Articles
The Senate passed historic gay rights legislation Thursday to bar discrimination based on sexual orientation or gender identity in the workplace, another victory for the gay rights movement that has been gaining favor in the courts and electoral politics.
Senators voted 64 to 32 to approve the Employment Non-Discrimination Act.
The vote marked the first time lawmakers had approved legislation to advance gay rights since repealing the military’s ban on gay men and lesbians in uniform in late 2010 and came two days after Illinois became the 15th state to legalize same-sex...
Ed O'Keefe | Washington Post 07 Nov 2013 Hits:728 ESJ Articles
Does it make any difference that families receiving SNAP benefits (food stamps) will have less to spend on food this month? Starting November 1, a family of four will lose…
After more than 200 advocates of the "Robin Hood tax" marched up Constitution Ave. here today to the Longworth House Office Building, lawmakers heard the vice president of the European…
Funding extension for SNAP allowed to expire as lawmakers weigh further cuts to the program for families in need
U.S. lawmakers will allow the essential food aid program Supplemental Nutrition Assistance…
Research shows the much-maligned aid to the poor buys broad economic and public health gains.
In September, just two days after a Census Bureau report showed that food stamps helped keep…
As a member of the U.S. Senate Budget Committee, I am more than aware that a $17 trillion dollar national debt and a $700 billion deficit are serious problems that…
Last time I checked, we aren't forced to sit in the back of the bus, and we aren't drinking from separate water fountains. So why in the world would we,…
It’s early on Friday morning and the union hall is packed with people waiting to see Bernie Sanders. Mostly gray-haired retirees fill the first few rows while unionists, college students…
The Democratic Congressional Campaign Committee is shifting the focus of the shutdown debate onto seniors in a new attack that hammers more than 60 House Republicans for "throw[ing] our seniors…
In a rally on Thursday, Congress’s left flank linked arms against using safety-net programs as bargaining chips.
As Republicans hold the government hostage and threaten to wreak economic havoc with the…
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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.
Listen to this month's call to hear about plans to decimate Social Security, what the American Federation of Government Employees is doing about it, and what PDA can do to help save Social Security.
Listen in as we speak with Student Debt Crisis' Director and Co-Founder, Natalia Abrams. Find out what Student Debt Crisis is doing at the forefront of this issue, and about the legislation they endorse (HR 1330: The Student Loan Fairness Act,...
Listen to this call as we discuss the need for a government-subsidized jobs program, in order to create an economy where there is a job for everyone who needs one. Melissa Young, Director of the Heartland Alliance National Initiatives on Poverty...
Listen to our coalition partners at National Nurses United (NNU) speak on the Robin Hood Tax campaign. Bill Gallagher, the Robin Hood Tax Campaign Coordinator for NNU, and Sheilah Garland Political Organizer for Illinois and Missouri with NNOC/NNU,...
Listen to Alex Lawson, Executive Director of Social Security Works and PDA coalition partner, discuss the upcoming battle to protect our Social Security and how we are putting the attackers on the defensive.
Listen to guest Zachary Schechter-Steinberg, the Senior Economic Advisor for the Senate Committee on Health, Education, Labor, and Pensions, discuss the push for a Chained CPI regarding Social Security. Included is the conversation: how to put...