RE: ESPERANSA ATTORNEYS RESPOND TO DR. SHIEH'S CONCERNS ABOUT BILL 52-31
Yesterday, October 23, 2012, on the eve of the special legislative session called by Governor Calvo to vote on Bill 52-31, the women's informed consent for abortion bill, Dr. Thomas Shieh, an OBGYN, sent a letter to the Legislature questioning some aspects of the bill.
A copy of Doctor Shieh's original letter can be obtained here.
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DR. SHIEH: Page 3: Under 9. Gestational age means the time has elapsed since the first day of the woman's last occurring menstruation.
The true gestational age applies here only if the woman's menstruation is regular, but for many women with uncertain menses, the true gestational ages can only be determined by an ultrasound examination. This ultrasound examination's margin of error if conducted in the first trimester is accurate within one week. If the ultrasound is conducted in the second trimester or third, it has a margin of error within two weeks. This section for your consideration should be amended to read; "If a woman's menses is unsure, gestational age is based on the ultrasound examination otherwise is based on her first day of her last occurring menstruation."
ESPERANSA: When we drafted this legislation we did so under the presumption that it would eventually come under attack by the abortion industry and its allies. In some states where similar legislation required doctors to conduct ultrasound examinations to determine the gestational age, this requirement was attacked as constituting an "undue burden" on the woman's right to an abortion. In order to avoid similar attacks, we decided not to require ultrasound examinations. Instead, gestational age will be calculated based upon the date of the woman's last menstruation which is an accurate way to determine gestational age for most women. With respect to the minority of pregnant women who have irregular menstrual cycles, this method of calculating gestational age could produce an age determination that is less certain. For that reason the bill accurately notes that the age provided is a "probable gestational age."
DR. SHIEH: Page 5: Under (v). The abortionist has to inform the woman - "The medical risks associated with carrying the child to term;"
This part of the bill appears to be contradicting the intent of the bill. Page 1, Legislative intent: "It is essential to the psychological and physical well-being of a woman considering an abortion that she receives complete and accurate information material to her decision of whether to undergo an abortion including information concerning abortion alternatives." The legislative intent is to ensure information about abortion, thus the requirement to inform the woman of the hundreds of RISKS that can be associated with carrying a pregnancy to term may actually encourage a woman to choose an abortion rather than to keep her baby. You may wish to consider this section for deletion.
ESPERANSA: The legislative intent is not to just "ensure [sic] information about abortion." Rather the intent of bill is to ensure that a "woman considering an abortion...receives complete and accurate information material to her decision of whether to undergo an abortion including information concerning abortion alternatives." Complete and accurate information about "abortion alternatives" includes information regarding the risks associated with carrying the child to term.
DR. SHIEH: Page: 8 - 10: Under (c): Publication of Materials.
There was no requirement to produce materials on the "risks associated" with carrying the child to term. Thus adding to the consideration that section (v) should be deleted, unless you feel the need to produce that part of the educational material, which can be a book of related complications, which I do not think the "Department" can adequately and accurately produce.
ESPERANSA: Not true. Please see proposed Section 3218.1(c)(4), which requires the printed materials to include information regarding "the medical risks associated with carrying a child to term."
DR. SHIEH: Furthermore, I would recommend in the legislation a qualified team of obgyns rather than just the "Department" to ensure that the material produced is within specialty and more accurately provided for the woman and their reproductive health.
ESPERANSA: If the Department of Public Health and Social Services (Department) decides to seek assistance from someone in the medical community to check the accuracy of the printed materials, the Department may of course do that. On the other hand, all of the information called for in Bill 52 is widely available in basic embryology and fetology textbooks and at various well respected on line sources.
DR. SHIEH: Page: 9 Under (f): Criminal Penalties. Any person who intentionally, Knowingly, or recklessly violates this Act is guilty of a misdemeanor.
This section for penalties appears to be inadequate. If the basis of this act is truly about the
uninformed termination of life, and that the potential of a live human is being taken away, so the penalties for this supposedly reckless violation should be heavier should it not? For your consideration, you may want to make the appropriate amendments to this section.
ESPERANSA: The purpose of the criminal sanction is to dissuade abortion providers from violating the law. We think that a misdemeanor charge will achieve this purpose.
DR. SHIEH: Page 11: Under (g). Civil and Administrative Claims.
This section attempts to re-define what constitutes "malpractice." By defining that if a physician violates this act, he or she is committing malpractice that is by all means is not based on evidence of a clear deviation from the standard of care. This sets a dangerous line to cross. Physicians practices a standard of care that is dictated by evidence based medicine that usually comes from the respective specialties, such as the American College of Obstetricians & Gynecologist in this particular field and issue. This includes any publications presented are usually by the college. Malpractice should not be defined by the legislature. This can set a dangerous precedent and creates a standard of care deviation, thus for your consideration this section should be deleted.
ESPERANSA: Guam law defines malpractice as "any tort or breach of contract based on health care or professional services rendered or which should have been rendered, by a health professional or health care institution to a patient." 10 GCA § 11102(c). Thus, Guam law recognizes "breach of contract" as a basis for a malpractice claim. This is consistent with related case law. "A medical malpractice suit need not be limited to a negligence theory '...there can be recovery on the theory of warranty (or, to give the theory its more accurate name, breach of contract).'" Christ v. Lipsitz, 99 Cal. App. 3d 894, 899 (Ct. App. 1979) citing Depenbrok v. Kaiser Found. Health Plan, Inc., 79 Cal. App. 3d 167, 171 (Ct. App. 1978).
A claim for breach of contract against a physician - although classified statutorily as "malpractice"- would not depend on whether the physician deviated from a particular standard of care (as it would in the case of a tort claim), but rather whether the physician achieved a promised result. Thus, Dr. Shieh's assertion that Bill 52 is inherently flawed because it establishes a basis for a malpractice claim that is not based upon a standard of care is simply wrong.
More important, however, is that the policy concerns raised by Dr. Shieh do not apply here. This provision of Bill 52 does not rob the courts of their ability to determine whether the services rendered by the abortion provider meet the applicable standard of care. It simply gives a woman standing to bring a malpractice claim on account of the doctor's failure to obtain her informed consent. Whether the doctor indeed failed to obtain the woman's consent would still be left to the courts to decide. As to whether the subsequent services (i.e., the abortion) met the applicable standard of care, this would not be an element of the claim or an issue before the court.
DR. SHIEH: Lastly, this act also requires information be accurately presented to the woman prior to abortion on the availability of Medical, Financial, and Public Assistance to the mother and her baby. For your consideration, there should be a provision in this act to ensure that should the woman decide against an abortion and later, her fetus is discovered to have a physical or genetic birth defect, how will she able to care for her child. The financial resources available to her have to be realistic.
ESPERANSA: The goal of these particular informational requirements is make sure a woman knows what resources are available to her; and to encourage her to contact these resources so that she obtains a full understanding of what they provide - and don't provide - before she makes her decision. As to the specific inquiries that a woman chooses to make - whether they relate to birth defects or other issues particular to her circumstances - the intent of the Bill was to leave this to the woman to decide. Nevertheless, it might be of some value to include among the printed materials a suggestion that the woman raise the issue of physical and genetic defects when she contacts the resources.
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