Emergency Contraception: When Does Failure to Dispense Give Rise to Liability?

Gwen Mayes, JD, MMSc

Disclosures

March 18, 2003

Introduction

For decades, physicians have known that administering high doses of oral contraceptives can avert a pregnancy by acting hormonally to either prevent ovulation or prevent implantation of a fertilized egg. Despite US Food and Drug Administration (FDA) approval and the endorsement of many established medical organizations, including the American College of Obstetricians and Gynecologists and the World Health Organization, emergency contraception (EC) remains controversial in many parts of the country. As a result, state legislators have proposed, and in some cases successfully enacted, laws geared toward increasing the knowledge and availability of EC, especially in cases of rape.

Starting with Washington, 3 states have enacted pharmacy laws to allow for direct access to EC, and others are looking at similar legislation. According to the MergerWatch Project of Family Planning Advocates of New York State, as of early February 2003,[1] 14 states have introduced or passed legislation directed at making EC available to rape victims in hospital emergency rooms.

The increased use of EC raises the question of physician (or other practitioner) liability for failure to dispense and whether the "conscious clauses," which shield physicians and other practitioners from liability for not participating unwillingly in an abortion, will provide similar protection for not dispensing EC. Moreover, there is a question as to where liability will fall-- on the individual practitioner or the institution?

"We are only aware of 1 court case that squarely addresses the hospital's liability for failure to dispense EC," says Angela D. Hooton, Blackman Fellow and Attorney with the Center for Reproductive Rights (formerly the Center for Reproductive Law and Policy) in New York (personal communication, January 28, 2003; Ahooton@reprorights.org). "In Brownfield v. Daniel Freeman Marina Hospital (1989),[2] a California appellate court held that a hospital could be held liable for a physician's failure to dispense EC." Although the hospital's defense was that the physician was protected under their conscious clause, the court held that because the "morning after pill" was a "pregnancy prevention method," the conscious clause offered no protection. Although the court denied the rape victim's breach of contract and unfair business practice claims, it did posit that similarly situated victims could proceed with a medical malpractice claim. "She would have had a malpractice claim only if she had suffered actual damages, in this case an unwanted pregnancy," adds Hooton, "and she did not become pregnant."

Publicly funded clinics under Title X of the Public Health Service Act, the only federal program devoted solely to the provision of family planning and reproductive healthcare, are under a special duty to dispense EC. According to the federal Office of Population Affairs, 4.5 million women receive family planning services each year at 4600 clinics, including access to EC. "Emergency contraceptives are to be available in all publicly funded clinics," says Cris Rodriguez, Regional Consultant for Title X, US Department of Health and Human Services (Region IV), "but exceptions for individuals unwilling to dispense EC are permissible. The grantee must be in compliance with Title X, not an individual practitioner" (personal communication, February 19, 2003; crodriguez@osophs.dhhs.gov).

Legal action addressing practitioners interjecting personal beliefs into their duty to dispense EC was at play in a recent California case[3] in which a Riverside County nurse was fired for telling other nurses that they would be "required to perform an abortion" if they made EC available to women at the publicly funded clinic. A jury sitting in the United States District Court ruled in favor of the nurse and awarded her $46,292 in back pay and damages. Although the nurse was considered an employee at-will and the clinic was required to make EC available, the court held that an employer has no power to terminate an employee for a reason contrary to public policy, such as exercising one's free speech.

In a similar situation, the Louisiana Department of Health and Hospitals backed off on terminating a public health nurse who refused to dispense EC on religious grounds after the American Center for Law and Justice filed complaints with the US Equal Employment Opportunity Commission and the Louisiana Commission on Human Rights on her behalf.[4]

Physicians could be personally liable for failure to dispense if the standard of care favors providing information about EC and making it available upon request. "If you are not going to provide EC to patients, you need to refer them elsewhere because to do otherwise is outside the standard of care," says Hooton. Increasingly, this position is strengthened due to the trends in state legislation and the widely held medical opinion that EC effectively prevents a pregnancy.

On the federal legislative level, 5 bills relating to EC were introduced in the last Congress, and similar ones are expected in the upcoming one. "We prefer bills that educate the public and professionals about ECP [emergency contraceptive pills] in general over ones that are limited to rape victims because they establish its use as the standard of care for all women. Our basic premise is that the use of ECP should be standardized and that women should have a prescription for ECP on hand, or preferably, a dose available on their medicine shelf," says Julia Ernst, Washington representative for the Center for Reproductive Rights (personal communication, January 28, 2003; Jernst@reprorights.org).

State and federal legislation may soon be a moot point: the FDA is currently considering a petition to make EC pills available over the counter. Until then, availability of EC raises questions of liability for failure to dispense. As in any medical malpractice case, the overarching question is whether a duty of care existed, and if so, was it breached. With regard to EC, the duty will either rest with the facility such as a publicly funded clinic that is required to make EC available upon request (while allowing for variations in individual participation) or a hospital (under state law), or it will rest on the individual practitioner as the standard of care moves toward one of routine use and the awareness of its availability increases.

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