Missouri health care providers, namely OB/GYNs and emergency medicine physicians, are facing the daunting challenge to determine in real time whether a “medical emergency” exists to perform an abortion under the state’s new statutory scheme. The stakes are at an all-time high. Providers have a duty to their patients to “do no harm,” yet also face the very real prospect of facing criminal liability and even the loss of their professional license for performing an abortion found not to be a medical emergency. Chapter 188 is in effect and health care providers need to be prepared to handle the myriad of situations that are sure to arise so as to address the legal ramifications.

Situations implicated by these concerns can take many forms, but the following are two hypotheticals involving ectopic pregnancies. First, take the case of a pregnant woman with an ectopic pregnancy who hypothetically presents to the emergency department and dies several hours later from complications while the health care providers attempt to obtain a legal opinion on how they can proceed. Assume that the woman’s pregnancy has progressed to a diagnosis for which the only treatment is to perform an abortion, or the mother will die. Further assume that the opinion to proceed with the abortion was not provided until it was too late to timely act upon it.

Second, assume a similar hypothetical situation in which a pregnant woman with an ectopic pregnancy presents to an emergency department and a life-threatening rupture was imminent. Again, the only treatment the provider recommends to save the life of the mother is to terminate the pregnancy. An ethics committee is convened to provide guidance on whether the condition met the definition of a medical emergency under the statute. After more than twelve hours, the ethics committee concurs with the provider and the procedure is immediately performed. The delay apparently does not result in harm to the mother.

As a wise probate commissioner in the City of St. Louis used to say, law and medicine do not always intersect. That is not an excuse, but an adage that health care lawyers must keep in mind to do better and have their clients prepared. Unfortunately, once the pregnant patient arrives with a medical emergency, it is too late to come up with, and vet, a plan.

The reality is that health care attorneys are going to be called by desperate health care providers in the middle of a very stressful situation to determine how to resolve the medical emergency in a very time-sensitive manner. This must also be done with an eye towards documenting the decision(s) for the inevitable review of the medical treatment from the lens of the criminal statute. And if no action is taken by the health care provider, resulting in patient injury or even death, then there is potential civil liability for medical malpractice.

Health care providers are in an unenviable position and are understandably concerned. On the one hand, if they perform an abortion under the “medical emergency exception” of the statute, they could still be criminally prosecuted for a class B felony. This would trigger reporting requirements to the Missouri Board of Registration for the Healing Arts which could result in the suspension or revocation of their professional license. One cannot rely upon representations of non-prosecution by local prosecuting attorneys as the statute provides the rare allowance of concurrent jurisdiction with the prosecuting attorney and the attorney general.

Even if the provider complies with the letter of the law, it is still his or her burden in a criminal prosecution to raise the “affirmative defense” of a “medical emergency” based on “reasonable medical judgment.” This results in a situation in which most criminal cases brought under this statute will result in a factual determination for a jury.

Chapter 188 states that abortions are not allowed except in cases of medical emergency. Section 188.017.2, RSMo. A “medical emergency” is defined as “a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman[.]” Section 188.015(7), RSMo.

The term “reasonable medical judgment” is defined in the statute as “a medical judgment that would be made by a reasonably prudent physician knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved[.]” Section 188.015(8), RSMo. Although a criminal statute, the definition is strikingly similar to a medical malpractice standard of care, which in Missouri is the “failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant’s profession.” Missouri Approved Instruction 11.06.

Though no cases have yet come before a judge for legal determination, one interpretation of this statutory definition would result in criminal trials becoming a battle of the experts on the issue of “medical emergency” based on “reasonable medical judgment.” One wonders if this is the result the General Assembly desired from this statute. Those of us who have practiced in the area of medical malpractice are aware that if one looks hard enough, one can find an “expert opinion” to support almost anything. As a result, the physician defendant’s burden to prove the “affirmative defense” will cause a factual determination for a jury in each case in which an abortion is performed in Missouri. Proper documentation will be of prime importance.

All abortions performed in hospitals must be reported to the Missouri Department of Health and Senior Services within 30 days, along with other requirements. This is a report that could start an investigation leading to potential criminal charges as well as licensure issues. No provider wants to become the test case for a criminal prosecution. However, no provider can predetermine which patient will come through an emergency room’s doors. Unfortunately, health care providers may find themselves without the luxury of consultation with numerous colleagues, round tabling the case, and even obtaining an ethics consultation.

Physicians and hospitals must take action to plan for how providers may best prepare themselves to meet the requirements of this new statutory scheme. It goes without saying that health care providers need to involve experienced health care counsel before the medical emergency arrives. They must then follow through on the guidance both during, and after, the emergency to properly document the steps taken in anticipation of potential interactions with regulatory authorities.

Additionally, identifying the appropriate internal review of what constitutes a “medical emergency” based on “reasonable medical judgment” will cause another challenge. Ethics committees are helpful in many situations, such as end of life issues and novel treatments. As a practical matter they may not offer appropriate understanding of “treatment possibilities” under the statute. While courts have typically looked favorably upon an ethics consult in a difficult case, the broad composition of the committee may not be as helpful in determining a “medical emergency” and “reasonable medical judgment” by a physician knowledgeable about the case and treatment possibilities. This may create a false sense of security in preventing further action against the provider who ultimately bears responsibility under the parameters of Chapter 188.

The Health Care Advisory Team at Lashly & Bear, P.C. has the broad base of experienced attorneys to assist health care providers, hospital, and health care systems through the nuances that are going to arise. Our team consists of both regulatory and litigation attorneys that are uniquely qualified to handle these types of matters. Please reach out to your Lashly & Baer attorney with any questions.

Prepared by:
Michael R. Barth
Phone: 314-436-8382
mbarth@lashlybaer.com

Matthew S. McBride
Phone: 314-436-8324
mmcbride@lashlybaer.com

This summary and legal alert is an overview of the new guidance. It is not intended to be, and should not be construed as, legal advice for a specific factual situation.