What if your ED won’t offer EC?
Do you offer emergency contraception (EC) to all rape victims who come to your ED? In 1989, a Los Angeles Court of Appeal gave rape victims the right to sue hospitals if "information concerning and access to EC" isn’t given. Unfortunately, this outcome failed to change the practices of many Catholic hospitals which still refuse to offer EC, according to John Goldenring, MD, MPH, a San Diego-based physician who treated the plaintiff in the 1989 case after her initial ED visit.
In 1985, Goldenring surveyed 12 Catholic-run EDs in Los Angeles and found that 67% had policies prohibiting physicians from offering EC.1-3 "Fifteen years later, apparently things haven’t gotten much better, which is pretty hard to believe," he says. Goldenring refers to a recent survey of EDs nationwide that found many still have policies against discussing EC with rape victims.4
Still, the 1989 ruling "puts hospitals on notice that if they do not provide access to [EC] or information about it, they can now, as a result of our case, be sued for significant amounts of money by rape victims," according to Gloria Allred, JD, the plaintiff’s attorney and a partner in the Los Angeles-based firm of Allred, Maroko & Goldberg.
Here are things to consider regarding liability risks and your policy for EC:
• A referral may not be enough. Giving a referral for EC may be viewed by courts as inadequate if it makes it more likely that a rape victim will get pregnant, argues Jon Merz, MD, an assistant professor at the Center for Bioethics at the University of Pennsylvania in Philadelphia. "We do know that women delay going to hospitals following rape, so this might mean that a survivor may not have a lot of time to run around trying to get necessary medical care," he argues.
According to Merz, a referral is not appropriate unless the physician is nearby and available within a very short time. "A woman should not be made to wait overnight to try to find a physician who may then be too busy to see her for several hours or worse," he says.
Merely telling a rape victim that the treatments to prevent pregnancy are available and the woman should go see her physician is inadequate, he stresses. An alternative source of the pills must be reasonably available, says Merz. "So, the only hospital in a 30-mile radius has a much higher obligation to ensure that women are given the pills than a hospital in the middle of a major city," he adds. Giving a rape victim a referral at 3 a.m. is effectively delaying treatment for many hours, argues Merz. "There is also an increased cost to the patient, as she must go to another physician just to get a prescription," he says.
• Consider obtaining your own legal counsel. If your hospital has a policy against giving EC to patients, Allred advises asking a lawyer for advice. "Find out what you should do under the circumstances, because you may have a conflict of interest with the hospital," she says. She recommends having an attorney review your hospital’s policy for EC. "Any decision you make might have adverse legal consequences for you, and there could be individual liability risks," she stresses.
On the other hand, if your hospital’s policy is to offer EC and you fail to follow it, you could be held individually liable if the patient sues, says Bonnie Scott Jones, a staff attorney with the New York City-based Center for Reproductive Law and Policy. Even if no such policies or instructions exist, you still may be held liable if you are given the authority to diagnose and treat the patient and fail to offer or refer for EC, says Jones.
• Standard of care may be breached. A rape victim not offered EC or given a referral may become pregnant and sue the hospital for wrongful birth or malpractice, warns Jones. "If the hospital fails to tell her about EC in this situation, they may well have breached the standard of care they owe to the patient," she says.
Merz notes that approximately 32,000 women become pregnant as a result of rape, and about half of these pregnancies end in abortion.5 If a rape victim become pregnant and decides to have an abortion, she has to undergo a surgery that she could very well have avoided by using EC, says Jones. "Or the woman may carry the pregnancy to term and would then have to face numerous health risks that she may have been able to avoid by using EC," she adds.
Jones says that both these scenarios contain the all the required elements of a malpractice suit, defined as a harm caused by a physician’s breach of the standard of care. "I expect that similar lawsuits will be filed if hospitals don’t offer EC or meaningful referrals for it," she predicts.
References
1. Goldenring JM. Denial of anti-pregnancy prophylaxix to rape victims [letter]. N Engl J Med 1984; 311:1,637.
2. Goldenring JM. Estrogen treatment for victims of rape [reply]. N Engl J Med 1985; 312:988-989.
3. Goldenring JM. Inadequate care of rape cases in emergency rooms of hospitals with a religious affiliation. J Adolesc Health Care 1986; 7:141-142.
4. Smugar SS, Spina BJ, Merz JF. Informed consent for emergency contraception: Variability in hospital care of rape victims. Am J Pub Health 2000; 90:1,372-1,376.
5. Tjaden P, Thoennes N. Prevalence, incidence, and consequences of violence against women: Findings from the National Violence Against Women Survey. Research in Brief. Washington, DC: U.S. Dept. of Justice, National Institute of Justice; Nov. 1998, NCJ 172837.
Sources
For more information on the liability risks of failing to provide emergency contraception, contact:
• Gloria Allred, JD, Allred, Maroko & Goldberg, 6300 Wilshire Blvd., Suite 1500, Los Angeles, CA 90048. Telephone: (323) 653-6530. Fax: (323) 653-1660. Web: www.gloriaallred.com.
• Jon Merz, MD, Center for Bioethics, University of Pennsylvania, 3401 Market St., Suite 320, Philadelphia, PA 19104-3308. Telephone: (215) 573-8107. Fax: (215) 573-4931. E-mail: [email protected].
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