Legalizing “Whoops”

by Adrianna McIntyre

I’ve been watching copious amounts of Nip/Tuck, so I didn’t think that I could be shocked by casually compromised medical ethics (or by much of anything, at this point). And then I read the following: This bill gives a doctor the right to withhold information about the health of a fetus… [this] gives doctors the right to lie to their patients.” Except instead of streaming on Netflix, it was published in the New England Journal of Medicine last week.  Instead of being an overwrought work of fiction, this was signed into Arizona law on April 17.

With my mind echoing the author’s sentiments (where is the outrage?), I did what I do in pretty much every situation, ever: I Googled it. Arizona Senate Bill 1359 prohibits lawsuits against “wrongful births.” That is to say, it prevents malpractice lawsuits in the event that a physician fails to inform a patient of prenatal problems that might/would have led to an abortion. Arizona isn’t the first state to pass such legislation—or the second, or the third. They’re the tenth.


Except there’s a caveat that forced me to temper my outrage (momentarily). The law includes the following language: [T]hese provisions do not apply to civil action for damages for an intentional or grossly negligent act or omission, including one that violates criminal law. According to Nancy Barto, an Arizona state senator who sponsored the bill, this means that “Medical professionals who intentionally or knowingly withhold information from prospective parents may still be sued for gross negligence under this bill.  That would include not performing or offering to perform tests that would be considered standard medical care during the course of a woman’s pregnancy.”

This complicates the relatively simple narrative above. Contrary to the concise and sensational rhetoric, this law doesn’t explicitly permit physicians to intentionally lie to patients as it suits their personal beliefs. I would venture that this is why the story didn’t spend more time in the media spotlight following its passage—the best angle is trumped by the mundane reality of policy language. Granted, there’s still a significant “deliberate negligence” argument to be made—I imagine that it would be difficult (impossible?) to prove intent, especially when incompetence is a viable (and legal) alternative. Just as a hypothetical: abortions after 20 weeks are banned in Arizona; if a physician “forgot” to order tests until an expectant mother was outside that window, the physician would likely be found negligent (and would thus be protected under the new law).

But I’m not interested in the burden of proof argument; I’m sure you can think of more workarounds without my idle speculation. My question is more philosophical: why are we deciding that sometimes it’s okay for doctors to practice bad medicine? That is, after all, precisely what this law does. It redefines medical malpractice to say “Malpractice is bad, unless it might’ve led to an abortion. In that case, it doesn’t matter; have a nice day.” Doesn’t that strike anyone else as backwards? For a hot second, dismiss your position as pro-choice/pro-life/pro-indecsion. Dismiss your views about tort reform. At its core, this law is about (in)consistency in physician accountability. It’s about legislating inconsistency in our expectations as patients.

So, I think the NEJM author still has a valid question. Where is the outrage?

photo credit: Bradford Veley, CartoonStock

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Adrianna works in clinical research and will begin graduate studies at the University of Michigan this fall.
Follow her on Twitter @onceuponA.

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