OP-ED

The Return of the Angry Granny State

Texas should call itself The Granny State. That’s because it’s a nanny state in which the public officials who run the place have the values of a tea-totaling, Bible-thumping biddy who knows how God wants everyone to live and can’t resist telling them. No buying liquor on Sundays when people are supposed to be at church. No gambling ever. No whacky-weed for medicinal uses or recreation, even in the privacy of one’s home. No gay marriage, preferably no gays, and no transgender folk deciding which restrooms to use. And, of course, no sex, sex education, birth control, or abortions. Women should have sex only in marriage and then only to reproduce, and those who get pregnant must carry their babies to term, regardless of the consequences for themselves or anyone else.

These religion-inspired policies have served Texans poorly. The state’s maternal mortality rate nearly doubled in just two years after Texas cut its budget for family planning by two-thirds and eliminated funding for Planned Parenthood clinics. It’s now the worst in the developed world, not just in the US. Texas ranks 8th from the bottom in the frequency of STDs and has the 5th highest teen pregnancy rate too. Its 35 births per 1,000 girls aged 15-19 are nearly double the national average. Meanwhile, Colorado and other states have achieved miraculous reductions in teen pregnancy rates and abortion rates by providing young women with long-acting contraceptives, like implants and IUDs. If Texas is following God’s plan, then God’s plan is a bust.

Now Granny is once again sticking her nose where it doesn’t belong. Currently before the Texas legislature is Senate Bill 25, which would eliminate the wrongful birth cause of action that the Texas Supreme Court recognized four decades ago in Jacobs v. Theimer. The facts were as follows. While traveling, Dortha Jacobs became ill. Upon returning home, she consulted a physician, Dr. Louis Theimer, who discovered that she was newly pregnant. Fearing that the illness was rubella—also known as the German measles—Jacobs asked Dr. Theimer if there was reason for concern. Rubella can injure a gestating fetus severely. Dr. Theimer told her not to worry, but he did so without performing an available diagnostic test. In fact, the disease was rubella and the child “was born with defects of brain, speech, sight, hearing, kidneys, and urinary tract,” among others. The medical expenses were extraordinary.

The Jacobs sued for medical malpractice. In defense, Dr. Theimer argued that his mistake could not have harmed them. When Mrs. Jacobs became pregnant, the US Supreme Court hadn’t yet decided Roe v. Wade and abortion was illegal in Texas for all purposes except to save the life of the mother. Because the baby’s defects did not endanger Mrs. Jacobs, Dr. Theimer contended that abortion wasn’t an option for her. She’d have had to deliver the baby even if he had identified her illness correctly. Therefore, she and her husband would also have had to bear the infant’s medical costs.

The Texas Supreme Court disagreed. Abortion was illegal in Texas, it reasoned, but the procedure was lawful elsewhere. Consequently, Dr. Theimer had to give the Jacobs the information they needed to choose among their available options, including the option of having an abortion performed in another state. By misdiagnosing the illness, he therefore caused their loss and was on the hook for the extraordinary medical costs. (To be clear, Dr. Theimer was not responsible for costs the couple would have borne in the course of raising a healthy child. A healthy child is regarded as a gain, not a loss, even when a pregnancy is unwanted.)

SB 25 would eliminate the wrongful birth cause of action by making it impermissible for anyone to recover damages by claiming that they would have terminated a pregnancy instead of carrying a baby to term. The bill provides that “[a] cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” Had the bill been law in 1975, the Jacobs would not have been able to argue that, but for Dr. Theimer’s negligence, they would have aborted the baby. They’d have had to pay for all the surgeries and other treatments the child needed, expenses that, today, would into the millions.

SB 25, which offers parents in the Jacobs’ position no financial help at all, has already passed the Texas Senate and seems bound to pass the House. Its success is assured because, politically, it is a two-fer. Texas’ Republican lawmakers are eager to free doctors from financial responsibility for medical errors and to advance the Christian right’s anti-abortion agenda. SB 25 does both.

The bill will cause problems, though, first and foremost because it allows medical providers to make errors with impunity. Given the frequency with which mistakes occur, Texas’ leaders should be strengthening the incentives providers have to exercise reasonable care, not emasculating the state’s already-weakened malpractice liability system.

 

The wording of SB 25 is also too broad. Suppose that a woman with a defective uterus becomes pregnant, that her ob-gyn negligently fails to identify the defect, that late in the pregnancy her uterus ruptures, and that the woman dies or is severely injured. If SB 25 becomes law, neither the mother nor her survivors will be able to recover from the ob-gyn. Their claim would be that, but for the doctor’s mistake, the mother would have protected herself by aborting the fetus instead of carrying the baby to term—precisely the claim that SB 25 would forbid. The bill would thus eliminate civil liability for negligence committed in the one context where abortion has always been lawful in Texas—to protect the life of the mother.

 

There’s no need for the bill either. In 2003, Texas eliminated the possibility of excessive damage awards in medical malpractice cases by capping patients’ damages. Both the number of malpractice claims and physicians’ insurance premiums are at historic lows. Wrongful birth cases are rare too. Although the available data do not quantify them precisely, a study by The Doctors Company finds that most malpractice claims against obstetricians involve delays in treatment of fetal distress or improper performance of vaginal delivery. Wrongful birth claims are brought too infrequently to have their own category.

 

SB 25’s supporters are offering two types of argument in support of the proposal. One is the worn-out assertion that the bill will attract doctors by making Texas a safer place for them to practice. Texas is already one of the most doctor-friendly states in the US—Emergency Physicians Monthly ranks it among the top four—and the assertion that tort reform brings doctors into the state has been thoroughly disproven. Texas’ leaders should be ashamed of themselves for repeating this falsehood.

Another argument is that wrongful birth lawsuits insult disabled persons by telling them that they would have been aborted had their parents known of their impairments. This is an example of good intentions gone astray. In all lawsuits, parties say unpleasant things about others. Plaintiffs accuse defendants of neglecting duties, committing frauds, breaking agreements, and being dishonest. Defendants accuse plaintiffs of spouting falsehoods, exaggerating injuries, and being responsible for their own losses. One wishes that civil justice could be delivered with fewer insults, but it is a blood sport and always will be. The main point, though, is that parents of children borne with serious defects need resources. Only with those in hand can they love their children and provide for them too. When the choice is between a dignitary loss and the money with which to pay for life’s necessities, the decision is easy, even if it is also made with regret.

 

Charles Silver is a professor at the University of Texas School of Law and a co-author of After Obamacare: Making American Health Care Better and Cheaper (forthcoming 2018).

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Charles_Silvercsilver@law.utexas.eduBobbyGvegasAllanWilliam Palmer MD Recent comment authors
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Allan
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Allan

“Given the frequency with which mistakes occur, Texas’ leaders should be strengthening the incentives providers have to exercise reasonable care” Is your claim that physicians don’t have enough incentives to provide reasonable care? At various times in some areas of the country physicians have refused to do obstetrics because of their liability. I’m not commenting on the wording of the law or whether or not it might be too broadly applied. You can further enlighten us on those aspects. I note you say the following below, but I’m not sure what low is or how low low malpractice awards are… Read more »

csilver@law.utexas.edu
Member
csilver@law.utexas.edu

Hi Allan, Thanks for the comment. Unfortunately, we disagree greatly about certain facts, and that could prevent us from having a constructive exchange. Here is my understanding. First, the point that providers’ incentives to exercise reasonable care are deficient is so clear as to be unarguable. Empirical studies of med mal litigation show that patients with meritorious claims are routinely and substantially under-compensated for their losses, which implies that providers are not forced to internalize the costs of medical mistakes. Third party payment for services also weakens incentives by insulating providers from competitive forces that motivate sellers of other types… Read more »

Allan
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Allan

Thanks Charlie for your response even though we don’t agree. I only have a short time to respond so I will respond to one part at a time when I can. Part 4 “there is little evidence that med mal liability is a significant driver of health care spending or that it impedes access to medical services.” That is what you think based upon selective studies. That is wrong on both accounts. I am not concerned with the malpractice premiums paid for they are only a small part of the problem. Why do we have so much marginal care? In… Read more »

csilver@law.utexas.edu
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csilver@law.utexas.edu

Hi Allan, Again, we disagree on the facts. The practice patterns of doctors who experience malpractice claims have been studied, and the evidence is that changes are temporary and minor. Here is an example: “In this paper, we examine how obstetricians respond to litigation. It is contended that obstetricians respond to increases in litigiousness by performing more cesarean sections. Using micro data, we examine whether physicians perform more cesareans after they or their colleagues have been contacted about a lawsuit. We observe very small, short-lived increases in cesarean section rates. It does not appear that the recent sharp rise in… Read more »

Allan
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Allan

“Again, we disagree on the facts.” I’m not sure much of anything we have under discussion reaches the level of fact. Much of what you are saying is based upon your particular view of what particular studies mean and your particular belief that those studies answer the questions at hand or are even good studies on the question. I don’t think trying to elevate our viewpoints to fact is the appropriate direction we should take. Cesarian sections: I don’t know why you are basing your contentions on caesarian sections and malpractice. Basically what you are saying is that if cesarian… Read more »

Charles_Silver
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Charles_Silver

Hi Allan, Facts matter, and when complex facts—such as the collateral effects of med mal liability—are disputed, I know of no source other than empirical studies to consult. These studies aren’t perfect, but they’re often good and when grouped, they often produce consensus answers. Re Cesarean Sections: In my world, the person who asserts a fact bears the burden of proving it. You asserted that med mal liability is responsible for over-treatment of hospitalized patients—all those needless billing entries. I offered the study of C-Sections to cast doubt on the general assertion of a strong connection between med mal liability… Read more »

Allan
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Allan

“Facts matter, and when complex facts—such as the collateral effects of med mal liability—are disputed” Absolutely! Facts matter Charlie, but that is not what we have been dealing with. Viewpoints and conflicting data don’t provide facts. I completely understand the various levels of evidence and consensus thinking, but that doesn’t provide us a definitive solution especially since all these things are heavily disputed. A quasi-experimental design*** from the NEJM is not fact and it isn’t even considered a good study though it may be interesting and a good thought to base a future study off of. Consensus is merely the… Read more »

Allan
Member
Allan

Part 2: “we want to encourage specialization and high-volume provision.” That has certainly been accomplished in some areas. Woman have problems finding an obstetrician and when delivery comes the obstetrician frequently isn’t there on time to actually deliver the baby. When the concentration of the specialty becomes so great one recognizes that the doctor can be in only one place at a time. Many woman don’t have an obstetrician available and have to use a midwife. I am not against such usage, but that does mean less training for those delivering babies and more responsibility placed on those obstetricians still… Read more »

csilver@law.utexas.edu
Member
csilver@law.utexas.edu

Hi Allan, Thanks for the detailed response. I appreciate the direct and sustained engagement. Re the shortage of obstetricians: I did a little searching and found a recent article on the subject: http://file.scirp.org/pdf/SS20110200012_56241038.pdf. I do not know the journal, but the authors are at the Ohio State University College of Medicine, so I assume they know what they’re talking about. Here is what they say. There are multiple reasons for the shortage of physicians in the U.S including the specialty of Obstetrics and Gynecologists (OBGYNs). The chief cause is continued growth in the U.S population and a static supply of… Read more »

Allan
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Allan

Charlie, I appologize that at this time I am unable to devote adequate time to our discussion. I appreciate your openess, but disagree. I can’t answer all points as well as I would like as I am in transit, but will do the best I can with the limited time I have. Please forgive me if I don’t respond to specific points or my response is a bit jumbled. “There are multiple reasons for the shortage of physicians in the U.S including the specialty of Obstetrics and Gynecologists (OBGYNs). The chief cause is continued growth in the U.S population and… Read more »

William Palmer MD
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William Palmer MD

There was no routine clinical test for diagnosis of rubella in 1975. Serological tests were send-out special tests, which could have been done theoretically in this case, but we do not know the office location or sophistication or difficulties or costs of such a send-out. The diagnosis was usually made by clinical appearance: seeing a maculo-papular rash and some lymphadenopathy and some fever in a person who said she was possibly exposed. Folks could also be infected but without any symptoms. The incubation period can be quite long for rubella,12-20 days, so that the doc may have had to have… Read more »

Peter
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Peter

“But, are you advocating abortion at any gestation for children that might cost the mother a lot of dough?” If the state is to take medical decisions away from mothers then the state needs to provide the necessary financial support to properly support the child for the rest of its life. My wife is a NICU nurse. I can’t tell you the number of times very sick babies with life long medical needs go home to trailer park finances. Many of these babies require 24/7 care which can only be provided by the family. This burden traps the family, with… Read more »

BobbyGvegas
Member

“If the state is to take medical decisions away from mothers then the state needs to provide the necessary financial support to properly support the child for the rest of its life.” Ah, alluding to that pesky “equal protection” thing, AMENDMENT XIV “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,… Read more »

csilver@law.utexas.edu
Member
csilver@law.utexas.edu

Hi Peter,

Thanks for making this point. I have nothing to add, other than to reiterate that SB 25 offers no financial help to parents in this situation.

Best wishes,

Charlie

csilver@law.utexas.edu
Member
csilver@law.utexas.edu

Hi William, Thanks for the info about the manner of diagnosing the illness. I’m not a historian of medicine, and the courts’ opinions said almost nothing about the nature of the test or examination the physician omitted. So, I intentionally left that matter vague. I’m not expecting perfection either. Rather, for the purposes of the column I merely assumed that the doctor was negligent. Whether he was would have been a question of fact for the jury after expert testimony, etc. Where to draw the line time-wise for the availability of abortion is also not at issue in the column.… Read more »

Steve2
Member
Steve2

I really enjoyed the time I was stationed in Texas. The wife went to med school at UTGalveston after working there as a research assistant for years. We were both distressed about this. Much as I love to hassle Texans, it is a pretty neat place and it is sad to see them do this kind of stuff. Even though I think I am honor bound to disagree with lawyers on general principle, I think you have this one right. Hope this is fixable, and soon.

Steve

csilver@law.utexas.edu
Member
csilver@law.utexas.edu

Hi Steve,

“Honor bound to disagree with lawyers on general principle”? Alas. But I’m glad we’re on the same side on this one.

Best wishes,

Charlie

Peter
Member
Peter

Republicans are all about keeping government out of our lives but forcing their “Christian” religion into our lives. But that’s their constituency; well organized, well funded, radical fundamentalists who blindly follow demagogues.

These are the same mind sets that ran the inquisition.

csilver@law.utexas.edu
Member
csilver@law.utexas.edu

Hail science!

And remember Mel Brooks: https://www.youtube.com/watch?v=5ZegQYgygdw