Do you offer rape victims emergency contraception? Liability is an issue
You need strategies to avoid malpractice and lawsuits
When police officers brought a 21-year-old woman to a Los Angeles ED after she was violently raped at gunpoint, her mother asked if her daughter would receive emergency contraception (EC) to prevent pregnancy. The ED nurse replied that EC would not be given because the patient was being treated in a Catholic hospital. The rape victim filed a lawsuit against the hospital. The result was a court ruling giving rape victims the right to sue for malpractice if they aren’t given access to EC.1
Most ED nurses would say that they would never deny treatment to an injured patient. Also, they would disagree that the medication a patient receives in their ED should depend on which physician is available. However, many nurses have never applied these standards to their ED’s policy for administering EC. "Lots of physicians will refuse to offer this, even though it’s a standard of practice," says Patricia M. Speck, APRN, BC, coordinator of nursing services at City of Memphis (TN) Sexual Assault Resource Center.2
EC can prevent pregnancy for up to 72 hours after unprotected intercourse with administration of specific dosages of oral contraceptives. (See contact information for manufacturers of EC in "Sources and resources" at the end of this article.)
Three recent studies have revealed that many EDs fail to offer patients EC:
• A 2000 survey revealed that out of 88 Washington hospitals, only 25 administered EC, and nine of those gave the drug only to rape victims.3
• A national survey of Catholic-owned hospitals showed that 82% denied women EC, even in cases of rape, and only 22% of those EDs provided patients with useful referrals.4
• A survey by the Philadelphia-based American Civil Liberties Union of Pennsylvania found that only 28% of EDs routinely made EC available to victims of sexual assault.5
Warning: You’re at risk for fines, lawsuits
If you fail to offer EC to rape victims or offer a referral, you risk being fined for failing to follow the standard of care, warns Linda E. Ledray, RN, PhD, FAAN, director of the Sexual Assault Resource Service in Minneapolis. She points to a recent case in which a New York City hospital was fined $46,000 by the state department of health for failing to follow proper protocols for EC, which resulted in a rape victim leaving without receiving the second dose of EC, among other violations.
Furthermore, if the patient requests EC and you don’t offer it or provide a referral, you can be sued for wrongful birth or emotional damage from seeking an abortion or adoption, warns Speck. "When a patient comes to the ED after a rape, you have a responsibility to help her address biological, psychological, and social issues," she underscores.
There is no question that EC is a standard of care for rape victims, says Speck. She points to the 1997 approval by the Food and Drug Administration of EC, guidelines from the Chicago-based American Medical Association (AMA) requiring that rape victims be advised of pregnancy risks and offered EC,6,7 and similar recommendations from the Dallas-based American College of Emergency Physicians (ACEP) and the Washington, DC-based American College of Obstetricians and Gynecologists (ACOG). (For information on obtaining these guidelines, see "Sources and resources.")
"I believe this is a strong medical malpractice case or civil lawsuit if the woman gets pregnant and EC was not provided in the ED," says Ledray. She argues that a referral is "too little, too late."
Here are items to consider regarding your ED’s policy for EC:
• Offer EC or a referral to all sexual assault victims. All sexual assault victims who are not on regular pregnancy prevention, who have not had a tubal ligation or hysterectomy, and who are not long past menopause should be offered the option of EC, or given a referral, according to Ledray. (To see Consent to Administer Emergency Contraception form, click here.) "Although we figure out where the patient is in her cycle and explain the degree of risk, we interpret the risk of pregnancy broadly," says Ledray. She adds that although the ED’s policy states that EC should be given for up to 72 hours, staff "err on the side of caution" by giving it for up to five days.
• Correct misconceptions about EC. Part of the problem is that many health care providers mistakenly believe that EC terminates an existing pregnancy, says Susan Chasson, MSN, JD, chairwoman of the Utah Valley Sexual Assault Task Force in Provo. "All of the studies indicate that EC is not harmful to an established pregnancy," she says.8,9 She explains that depending on the timing of the patient’s menstrual cycle, EC may inhibit or delay ovulation, inhibit tubal transport of the egg or sperm, interfere with fertilization, or alter the endometrium to prevent implantation of a fertilized egg.10,11 Chasson adds that health care providers may mistakenly believe that EC terminates an existing pregnancy.
• Determine your policy for EC in advance. If you don’t have a specific policy for EC, bring up the subject with your ED director or an administrator so that one can be developed, advises Speck. "During these discussions, you can provide information about EC, including the support documents from AMA and ACEP," she says.
Chasson suggests developing your EC policy with representation from risk management, the medical staff, and nursing. "Including these groups could avoid a lot of resentment," she says. "Your policy may need to change, but it needs to be a change that everybody feels good about."
• Have a "backup plan" if physicians won’t prescribe EC. Even though EC is the standard of practice for rape victims, many clinicians still refuse even to inform patients about this option, says Ledray. "Many do not know the difference between EC and abortion, or don’t care," she adds. "The Minnesota Medical Association recently tried to pass a law requiring physicians to give rape victims information about pregnancy prevention," she reports. "It was the most controversial issue at their annual meeting."
Ledray presents two solutions to the problem of physicians refusing to prescribe EC:
- contacting an on-call physician to prescribe EC while the patient still is in the ED;
- having a prescription in a secure location to administer in the event that a rape victim presents to the ED and no physician is available to prescribe EC.
It’s important for your EC policy to be consistent, says Chasson. "In many EDs, whether a patient can get EC depends on which doctor is there," she explains. For example, at 51% of the EDs in the Pennsylvania hospital survey, respondents said that EC was given at the discretion of the physician who happened to be present.
As a sexual assault nurse examiner (SANE), Ledray emphasizes that EDs at Catholic hospitals should find a way to provide the same level of care as other EDs. "We told the Catholic hospital we go to that we would not go to do the exam until they stocked EC for us," she reports. "They did!"
"You must have a protocol in place that provides for all rape victims to have access to EC, or at least a prescription, before leaving the hospital," she emphasizes. The ED nurse should know what the backup EC plan is ahead of time, says Ledray. "We always give every patient the option for EC, whatever lengths we must go to."
References
1. Kathleen Brownfield v. Daniel Freeman Marina Hospital. No. B032109. Court of Appeals, Second District, Division 4, California. March 2, 1989.
2. 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.
3. Doughton S. Contraception after the act. Tacoma News Tribune, Aug. 20, 2001: Accessed at www.tribnet.com.
4. Catholics for a Free Choice. Catholic Health Restrictions Updated. Washington, DC: Catholics for a Free Choice; 1999.
5. Clara Bell Duvall Reproductive Freedom Project. Emergency Contraception Services for Rape Victims in Pennsylvania Hospitals. Philadelphia: Clara Bell Duvall Reproductive Freedom Project: accessed at www.aclupa.org/duvall/ecinPA.html.
6. Food and Drug Administration. Prescription drug products: Certain combined oral contraceptives for use as post-coital emergency contraception. Fed Reg 1997; 62:8,610.
7. American Medical Association. Strategies for the Treatment and Prevention of Sexual Assault. Chicago: American Medical Association; 1995.
8. Knowles J. Emergency Contraception. New York City: Planned Parenthood Federation of America; 1998.
9. Glasier A. Drug therapy: Emergency postcoital contraception. New Engl J Med 1997; 337(15):1,058.
10. Goldenring JM. The brain life theory: Toward a consistent biological definition of humanness. J Med Ethics 1985; 11:198-204.
11. Rivera R, Yacobson I, Grimes D. The mechanism of action of hormonal contraceptives and intrauterine devices. Am J Obstet Gynecol 1999; 181:1,263-1,269.
Sources and resources
For more information about emergency contraception, contact:
• Susan Chasson, MSN, JD, Utah Valley Sexual Assault Task Force, 2295 W. 600 South, Provo, UT 84601. Telephone: (801) 376-6962. E-mail: [email protected].
• Linda E. Ledray, RN, PhD, FAAN, Director, Sexual Assault Resource Service, 525 Portland Ave S., Minneapolis, MN 55415. Telephone: (612) 347-5832. E-mail: [email protected].
• Patricia M. Speck, APRN, BC, Coordinator of Nursing Services, City of Memphis Sexual Assault Resource Center, 2675 Union Ave. Extended, Memphis, TN 38112. Fax: (901) 274-2769. E-mail: [email protected].
A Sexual Assault Nurse Examiner Development and Operation Guide (NCJ-170609) and Sexual Assault Nurse Examiner (SANE) Programs: Improving the Community Response to Sexual Assault Victims (NCJ-186366) can be downloaded free of charge at the Office for Victims of Crime web site at www.ojp.usdoj.gov/ovc. Click on "Publications," and scroll down to the publication titles. Single copies are available free of charge. Or contact: The National Criminal Justice Reference Service, Office for Victims of Crime Resource Center, P.O. Box 6000, Rockville, MD 20849-6000. Telephone: (800) 627-6872 or (301) 519-5500. E-mail: [email protected].
A handbook titled Evaluation and Management of the Sexually Assaulted or Sexually Abused Patient can be downloaded at no charge on ACEP’s web site (www.acep.org). Click on "Practice Resources." Under "Additional Resources," click on "Policy Resource and Education Papers" and scroll down to the handbook’s title.
The American Medical Association (AMA) has published guidelines on Strategies for the Treatment and Prevention of Sexual Assault, which address the legal duties of the acute-care physician and current practice of prevention of sexually transmitted diseases in acute-care settings. The cost is $5 for a single copy including shipping. To order, contact: The AMA, Science and Public Health Advocacy Programs, 515 N. State St., Chicago, IL 60610. Fax: (312) 464-5841.
Practice Patterns: Emergency Oral Contraception are evidence-based guidelines from the American College of Obstetricians and Gynecologists (ACOG) for emergency contraception. The cost is $30 (Item No. PP003). To obtain a copy, contact: ACOG Distribution Center, P.O. Box 4500, Kearneysville, WV 25430-4500. Telephone: (800) 762-2264, ext. 192. Fax: (800) 525-5562. E-mail: [email protected].
Plan B is the first progestin-only pill developed to prevent pregnancy after a contraceptive accident or unprotected sex. For more information, contact: Women’s Capital Corp., P.O. Box 5026, Bellevue, WA 98008. Telephone: (800) 330-1271. Fax: (973) 822-1444. Web: www.go2planb.com.
The PREVEN Emergency Contraceptive Kit is the first FDA-approved product for emergency contraception that can prevent pregnancy when used within 72 hours after sex. For more information, contact: Gynétics Inc., 3371 Route 1, Suite 200, Lawrenceville, NJ 08648. Telephone: (800) 311-7378. E-mail: [email protected]. Web: www.PREVEN.com.
A web site gives referral information, downloadable educational materials, and a listing of EC resources (www.not-2-late.com). A hotline, (888) NOT-2-LATE, gives callers contact information for up to five nearby health care providers who prescribe EC.
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