Readers familiar with the popular South Korean television program, Squid Game, will appreciate the Jot title’s reference to a child’s game turned into a fictional life-or-death contest. When a light is green, players are free to advance across a field toward a finish line. When the light is red, players must freeze in their positions, as one movement leads to “elimination” from the game.
In their important and novel article, Professors Lindgren and Oberman deploy the terms “green light” and “red light” to help describe physician decision-making with respect to pregnant patients in states that ban almost all abortion – green light decisions are those that are legal; red light decisions are those that would fall afoul of the law. The consequences of acting in “the red,” according to ban states’ laws, can include prison sentences, hefty fines, and loss of professional license. Though not death, as in the program Squid Game, contravening an abortion ban can have severe consequences.
Those potential consequences, in combination with vague statutory language, have triggered a retreat from the previous standard of care when treating pregnant patients. Lindgren and Oberman focus their attention on what they term “yellow light cases” – the care doctors routinely provided to pregnant patients prior to Dobbs, particularly in managing pregnancy complications, that seems risky today because its legality can be difficult to ascertain. This retreat has led to patients’ injuries and deaths that have been the subject of headlines but have not resulted in either patient compensation or provider punishment.
Abortion opponents have argued that the language of bans is clear and that the problem is that doctors refuse to provide care, hiding behind claims of legal ambiguity. Instead of revising the bans, some contend that doctors should be sued for medical malpractice. Tort theory suggests that medical malpractice lawsuits can play a public law function by clarifying the vagueness of law, or shrinking the yellow zone, when lawmakers will not intervene. Can the problem of delayed and denied care be remedied by suing doctors? Recalibrating Risk asks and answers that question with a decisive no. The authors explain that malpractice lawsuits will not solve the problems of delayed or denied care and may exacerbate patients’ ability to gain access to quality, appropriate care. Instead, they suggest strategies that depend on hospitals, health systems, and professional associations to guide providers on providing evidence-based, ethical care.
In this vein, Recalibrating Risk is the first law review article to ask how medical malpractice might address yellow light decisions about abortion care when physician action is likely legal but not clearly so. As the authors note, this inquiry is made against the backdrop of the profession’s aversion to liability, which manifests in many contexts as “defensive” medicine (or providing more care than necessary to avoid liability). In the current abortion context, doctors practice “hesitant” medicine, providing less care than may be optimal to avoid civil liability as well as criminal punishment. Such an aversion is heightened for the healthcare providers, like ER doctors, who do not typically have the same experience and training as obstetricians in abortion or miscarriage care.
The authors make clear that apprehension and hesitation are warranted. Medical professionals are under stress, particularly in ban states, and responding to risk under current abortion laws will have profound downstream effects. Since Dobbs, there have been decreases in applications to residency programs in ban states, as well as movement of physicians from ban states or from the field. I wrote about the changes in medical training, specifically residency training for OB/GYNs and family medicine providers, and how educational shifts post Dobbs could shape the future of care. It may be too soon to understand the connection between residency education provided today, providers’ navigation of abortion bans exceptions, and what that might mean for care deserts, provider liability, and the standard of care. Despite this uncertainty, the concern remains that there may not only be hesitation to deliver abortion care but also no one in a hospital (not to mention in an ER) who is trained to do so.
The article thus seeks to explain whether law and policy, including medical malpractice actions, can reduce the risk of making yellow light decisions. For one, the authors assess the likelihood of exposure to civil or criminal liability. They conclude that yellow light cases would not be the kind lawyers or prosecutors pursue, potentially even in the most-restrictive abortion states. On the civil side, the combination of tort reform caps on damages and the nature of contingency fees mean that few lawyers will take cases against doctors for making legally ambiguous, but likely justifiable, decisions. Litigation is too costly, and the payoff is too small. On the criminal side, prosecutors may be unlikely to pursue a case given that judges and juries will be sympathetic to the mistaken, but not negligent or willfully unlawful, doctor. The authors assert that prosecutions of physicians who perform abortions when a pregnant patient’s life or health is in danger, for instance, “would be legal longshots, and might also be controversial and politically unwise.” (P. 5.)
That said, the possibility that healthcare professionals will not face punishment may not be enough to change the hesitant practice of medicine. For Lindgren and Oberman, change could be the responsibility of healthcare institutions and professional organizations, issuing more guidance or information, as well as the result of litigation against those institutions but not healthcare providers. The authors offer examples (and counterexamples) of when guidance empowers health care professionals to determine what is lawful even if potentially unclear. For example, relaying information to patients about seeking legal abortions out of state is not a yellow-light situation; often, healthcare professionals perceive that law makes such disclosure risky when it in fact does not. (P. 12.) A few issues, however, remain for future thought.
One possibility is that institutions will issue protocols and guidance that constrict rather than expand the care offered. Many abortion bans, as written, do not match the medically accepted standard of care, as has been apparent in emergency situations. And here is a dilemma of the paper. If protocols and guidance are to track the current standard of care, then that advice might run afoul of state law. Though physicians are bound by both ethical or legal duties, the sanctions that result differ markedly, with violation of the law potentially resulting in fines or jail time. Because of these consequences, there is reason to believe that were hospitals and healthcare entities to issue guidance, they would draw lines to increase red light, not green light, decision-making to minimize the chance of legal liability.
The end goal may not be just “uniformity and predictability,” (P. 36) but to change what matters to the organizations issuing guidance. To that end, the authors contemplate corporate negligence claims against healthcare institutions or new emergency adjudicatory processes. Liability for the failure to meet an institution’s duty to provide adequate care or exposure to court hearings to determine legality on an expedited basis (like a judicial bypass hearing for minors seeking abortions without parental involvement) might be two avenues. But they will, of course, incur their own costs, which could be passed to patients either directly or indirectly.
I find promise in the authors’ description of “quiet systems,” such as helplines and networks working on the ground, to clarify an evidence-based standard of care and to reassure providers of best practices. (P. 43.) As the authors convincingly show, although the medical malpractice system will not disappear, it is a mistake to believe it will fill the void of legislative reform and institutional accountability. But, to meet this moment, diverse levers of influence need to be pulled both to shape post-Dobbs practice as well as providers’ perception of and tolerance for risk.
