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Doctors face legal jeopardy as Tennessee hospitals craft new pregnancy care policies

The Tennessean (Nashville) 9/1/2022 Frank Gluck and Cassandra Stephenson, Nashville Tennessean

A few weeks into her pregnancy with her second child, Emi Canahuati found herself in a hospital emergency room, bleeding and in pain.

Canahuati, a sex educator for more than two decades, knew she was about to miscarry and asked her physician to terminate her pregnancy before her condition worsened. But, she said, her doctor refused because she believed the fetus was still viable.

It wasn't. And soon the Nashville woman was in an intensive care unit receiving treatment for life-threatening sepsis and pneumonia. Doctors later told her she survived because she was young and otherwise healthy.

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"Had she terminated the pregnancy earlier, would that possibly have prevented the sepsis? I don't know that. But I know she (the doctor) did not give me the best care — the health care that I needed in that moment was what I requested," said Canahuati, recalling the incident from nearly a decade ago. "But she got to make that decision."

Emi Canahuati poses for a portrait Monday, Aug. 29, 2022 in Nashville, Tenn. Canahuati said she was hospitalized in 2009 for life-threatening sepsis and pneumonia after her doctor refused to terminate her pregnancy. © George Walker IV / The Tennessean Emi Canahuati poses for a portrait Monday, Aug. 29, 2022 in Nashville, Tenn. Canahuati said she was hospitalized in 2009 for life-threatening sepsis and pneumonia after her doctor refused to terminate her pregnancy.

Advocates for reproductive freedom worry that such situations will become commonplace in hospitals under Tennessee's newly implemented total abortion ban.

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Regardless of physicians' personal beliefs or medical best judgments, providing an abortion while a fetus is still alive in a woman's body is now a felony offense. Once charged, doctors may use as a legal defense the fact that a woman's life was in danger.

This, abortion supporters argue, will force doctors to second-guess themselves in emergency situations. And for now, Tennessee's major hospital systems have provided little public information on how they are advising their doctors to handle such cases.

Must in-house lawyers sign off on procedures first? Would more than one doctor need to affirm that any given case is "life-threatening?" Would pregnant women with failing pregnancies be first required to develop dangerous infections before medical intervention? Tennessee health centers largely aren't saying.

Federal law requires all hospitals receiving federal Medicare and Medicaid payments to stabilize patients with life-threatening medical conditions, regardless of the reason or the patient's ability to pay. It's unclear how this Reagan administration-era law will affect state abortion bans.

The Tennessee Attorney General's Office has refused to comment on that question. But it recently co-signed a brief in support of the state of Idaho, whose nearly identical abortion ban is now the subject of a Biden administration lawsuit seeking to ensure that life-protecting treatment is provided in all cases.

Tennessee's newly triggered law does not address miscarriages or their treatment. Rather it applies to the termination of pregnancies, which are defined as having "a living unborn child within (a woman's) body." 

This definition could lead to delays in care in cases of complications, such as ectopic pregnancies, which involve fertilized eggs growing outside the uterus and always lead to unviable fetuses. Waiting too long to terminate those pregnancies can be fatal for women.

News outlets in Texas, which has an abortion ban similar to Tennessee's, have found cases of women receiving delayed care for life-threatening conditions. This includes one woman whose water broke after 19 weeks of pregnancy and who had to flee the state for treatment.

Federal judges have offered conflicting opinions so far on such bans. A judge in Idaho backed the Biden administration, but one in Texas upheld that state's law.

"It takes us from the place of being physicians to being lawyers," Kim Looney, an obstetrician/gynecologist and assistant professor at Meharry Medical College, said during an abortion forum earlier this month. "Now I have to decide not medically what the standard of care is but first legally what's the standard of care? That may increase your morbidity, your mortality."

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As for Canahuati, she said the experience in the ICU had a profound effect on her and her family.

"As a direct result of me almost dying, we basically decided, obviously, us trying to have another child is absolutely not worth the possibility of me losing my life," she said. "So we decided we were done."

Hospitals offering little guidance

It remains to be seen how the state's new abortion ban will affect hospital operations. Even the Tennessee Hospital Association, the state's chief lobby group for hospitals, is unsure how health centers are going to proceed, said spokeswoman Andrea Turner.

The organization has not collected any information on new hospital policies, Turner said. 

“Tennessee hospitals provide care for medical emergencies in compliance with state law and in accordance with federal requirements," Turner added in a written statement. "Individual hospitals and health systems consult with their own legal counsel to ensure appropriate patient care is provided according to the law.”

Vanderbilt University Medical Center, the largest birthing center in Middle Tennessee, sent a memo to staff last week stating it was making unspecified "policy changes" to address concerns about the law. 

"Our goal is to support our clinicians to provide comprehensive reproductive health care to women in need, including facilitating appropriate care for our patients who are pregnant, consistent with federal and state law," the memo read, in part. 

The hospital did not elaborate when a reporter asked for details about the policy. Nor did it make available any of its medical staff to specifically discuss potential changes to its emergency response protocols.

Nashville General Hospital, a public institution and the city's only safety-net health center, is still working on its own internal policies, said spokeswoman Julie Groves.

"I would say we do not have any final policies yet that address the ban on abortion," Groves wrote in an email. "Internally we are working on policies and procedures to address this, as quickly as possible."

Nashville-based HCA, the nation's largest health care system, declined to say how it specifically plans to deal with abortion bans here and in other states with similar laws.

"This is a uniquely complex situation, and it will take time to assess the full effect it will have on health care providers," a company statement read, in part. "In the meantime, it will continue to be our practice to support and partner with licensed physicians who use their extensive training and experience to exercise their independent medical judgment to assess patients’ needs and determine the course of treatment within applicable laws and regulations."

West Tennessee Healthcare, a leading medical provider for the western half of the state, advised doctors in an internal memo that the law's protections for doctors providing life-saving abortion procedures are "narrow." 

It also noted that medical support staff may face criminal liability if they assist with an abortion. 

The memo, obtained under Tennessee's open records law, cites three types of dangerous pregnancies for which doctors may employ abortions: ectopic pregnancies, complications during miscarriages and "emergent hypertensive disorders, such as preeclampsia with severe features."

It further notes: "The information provided here does not constitute legal advice; it is for general informational purposes only. Please contact your own attorney to obtain advice with respect to any particular legal matter."

Doctors face legal uncertainties

Again, providing an abortion to save a woman's life in Tennessee could potentially lead to criminal charges. It's only after a doctor is charged, obtains an attorney and is going through the court system that he or she may cite, as a defense, that the abortion was medically needed.

The law states that doctors making this defense must have made "good faith" efforts to conclude that the abortion was necessary to prevent the death of the pregnant woman "or to prevent serious risk of substantial and irreversible impairment of a major bodily function" of the woman.

Mental health or threats of suicide are not valid reasons under the law.

"These terms are not defined," said Wallace Dietz, Metro Nashville's director of law. "As a lawyer, it's maddening that there's no definition for this, but I'm sure for the medical experts it's even more disturbing that this statute has so many gray areas that we are in very dangerous territory."

Complicating matters is the federal requirement that all patients showing up in emergency rooms with life-threatening conditions must be stabilized, no matter what — known as the 1986 Emergency Medical Treatment & Labor Act (EMTALA). So doctors are on the hook if they perform certain abortions, and hospitals are on the hook if they don't.

"If you perform that (life-saving abortion) procedure in Tennessee, you're committing a crime," said Chloe Akers, a Knoxville-based criminal defense attorney.  "But if you don't perform that procedure you're violating EMTALA, which puts your hospital in jeopardy because by receiving Medicare (funding) they're agreeing to that policy."

Ellen Clayton, a Vanderbilt law professor and pediatrician, said doctors need to prepare to be in legal jeopardy. 

"Health care providers need to talk with their lawyers and be sure about what the law permits and what it doesn't permit, and then they need to have the kind of backing in case somebody decides to go after them," Clayton said.

That said, Nashville-based ER physician Katrina Green said pregnant women should not hesitate to come to the hospital if they suspect something is wrong. 

"As an emergency physician, our job is to treat anybody who comes to the ER no matter what. The ER is always open," Green said. "Please do not wait to come to the ER if you are bleeding while pregnant or if you are having pain while pregnant."

Frank Gluck is the health care reporter for The Tennessean. He can be reached at fgluck@tennessean.com. Follow him on Twitter at @FrankGluck.

Cassandra Stephenson covers Metro government for The Tennessean. Reach her at ckstephenson@tennessean.com. Follow Cassandra on Twitter at @CStephenson731.

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This article originally appeared on Nashville Tennessean: Doctors face legal jeopardy as Tennessee hospitals craft new pregnancy care policies

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