The practice of medicine has always been difficult. In the best of times, physicians must make fast decisions under very stressful conditions. Every time a doctor navigates a crisis, they reflect on what decisions they made and how they might improve. At least the good ones do. This soul-searching often involves discussions with colleagues and staff on the events and decisions made.
Mortality and morbidity discussions, M&M as we say, are critical to improving the practice of medicine around the world. But now, admitting to the slightest uncertainty about the decisions you made can send you to prison. Just as doctors who treat pain and addiction have been second-guessed and prosecuted, the reticle is moving on to physicians in other fields of medicine.
In August of 2022, District Judge B. Lynn Winmill issued an order granting a pause to a recently passed Idaho state law. The law made it a felony for anyone to perform or assist in an abortion, with a few exceptions, including saving a patient’s life. The problem is that once you save someone’s life, how can you “prove” that the intervention was necessary? This may seem like an academic question, but I assure you it is not. Someone can always argue that the patient would have survived without the procedure. This someone can be a law enforcement officer, or it can be a politician with a badge. Prosecutors in America don’t need to take special classes or pass a test to gain the enormous power they wield. They are instead elected or politically appointed. If they have political ambitions, they need to make some news, and there is no better way to do that than a high-profile trial.
Physicians have traditionally been held in high esteem by American society, like military members and the police. But those who are elevated have further to fall, and everyone is fascinated by the destruction of a powerful or formerly well-respected person. That fascination gets Netflix documentaries made and boosts the prosecutors’ name into the public consciousness. “America’s Mayor” started as a prosecutor. So did most judges. According to a recent study, those selected to be federal judges who were advocates for the government outnumbered those who were advocates for citizens by a factor of 12 to 1. The road to political success is clear. Don’t be “soft” on crime.
So now you have a perfect storm. A prosecutorial open season, if you will, on ER doctors who are faced with this choice. Physicians and the federal government sued, arguing that the law was vaguely written and created an obstacle to determining when it was acceptable to intervene. Being wrong meant two to five years in state prison and revocation of a doctor’s medical license. The law claimed to differ to a doctor’s good faith medical judgment to prevent a pregnant patient’s death. What they don’t address is that this can be overridden by an argument of “willful blindness.” This is the argument used against many physicians who treat pain and addiction, that a doctor “should” have known to or not to do something but “chose” to be willfully blind. Willfully blind to what? To whatever argument the state wants to make. This negates what is called mens rea, the guilty mind component that used to be required to convict someone of a felony. It also obviates the recent Ruan ruling. Now, the state is allowed to argue that the accused knew, should have known, or were willfully blind, to what they “should” have done. And they can bring experts in to testify that the doctor “should” have known to do whatever the prosecutor wants to argue to the jury. That makes any attempt at post-crisis evaluation a threat to a doctor’s freedom.
Judge Winmill saw this danger and issued his injunction against the new law to protect physicians who make these critical decisions. ER doctors and OB/GYNs. The Judge saw the new law as contrary to the federal Emergency Medical Treatment and Labor Act, better known as EMTALA. ER physicians know that they must provide stabilizing medical care to all patients with an emergency who come to any hospital that receives Medicare payments. The order read that “… the state of Idaho, including all of its officers, employees, and agents, are prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital, … if an abortion is necessary to avoid placing the health of a pregnant patient “in serious jeopardy” or risking serious impairment to bodily functions or organs.” Doctors breathed a sigh of relief, but not for long.
The Ninth Circuit Court of Appeals overturned the stay just a few months later. Ruling that “the life of the mother exception is sufficient,” thereby stripping protection from the physicians and hospitals. And now it is just a matter of time until a prosecutor will seek to become a darling of voters who equate any abortion with murder. Having started my medical career in the emergency room, I don’t know what to tell them to keep them safe from prosecution. Wait too long, and you cost a woman her life; decide too soon, by some layperson’s estimation, and risk the destruction of everything you have built in your life. The fact is that no matter what you do, someone, somewhere, will feel that you were wrong. And while you might argue medical science and reason, the jury’s feelings will decide your fate. To my colleagues still in the trenches, tread softly, and good luck.
L. Joseph Parker is a distinguished professional with a diverse and accomplished career spanning the fields of science, military service, and medical practice. He currently serves as the chief science officer and operations officer, Advanced Research Concepts LLC, a pioneering company dedicated to propelling humanity into the realms of space exploration. At Advanced Research Concepts LLC, Dr. Parker leads a team of experts committed to developing innovative solutions for the complex challenges of space travel, including space transportation, energy storage, radiation shielding, artificial gravity, and space-related medical issues.
He can be reached on LinkedIn and YouTube.