The New York Times reported today that the ACLU has filed a lawsuit against the United States Conference of Catholic Bishops on behalf of Tamesha Means, a patient at Mercy Health Partners in Michigan. The suit alleges that Means suffered physical and emotional harm as a result of the Conference of Bishops’ ethical directives relating to pregnancy termination, which Mercy, as a Catholic health institution, is required to follow.
According to the ACLU press release and the Times article, when Means’ water broke 18 weeks into her pregnancy, she rushed to Mercy Health, the only hospital in her county. According to medical experts, the fetus had “virtually no chance of surviving” and posed a significant risk to Means’ health. Mercy physicians did not share this information with Means, and discharged her without informing her that terminating the pregnancy and extracting the fetus was the safest course of action from a medical perspective. Means returned to the hospital twice in the next two days, suffering from infection and extreme pain, but it wasn’t until she miscarried that the staff at Mercy attended to her medical needs. An obstetrician at the University of Wisconsin Medical School quoted in the Times described Mercy’s treatment of Means’ condition as “basic neglect.”
Rather than suing Mercy Health Partners, Means and the ACLU are suing the Conference of Bishops. They argue that by directing Catholic hospitals to avoid terminating pregnancies or providing referrals (even when a woman’s health is at risk), the Conference of Bishops is ultimately responsible for the harms suffered by Means and other women in her position. According to Louise Melling, deputy director of the ACLU, “This isn’t about religious freedom, it’s about medical care.”
There are a host of legal, ethical, and religious issues associated with the Tamesha Means case. But in this post, I’d like to focus on only one – the division of legal responsibility between health care providers and third parties when it comes to patient advocacy and quality of care.
American common law generally recognizes that medical providers, rather than hospital administrators, payors, or other third parties, are in the best position to determine the appropriate course of care for their patients. This rule is best reflected in two foundational health law cases – Wickline v. State of California (Cal. App. 1986) and Muse v. Charter Hospital (N.C. App. 1995). In Wickline, a California court refused to find a third-party payor (Medi-Cal, California’s medical assistance program) liable for patient injury when it denied payment for post-surgical hospitalization requested by the patient’s physician. According to the court, “it was for the patient’s treating physician to decide the course of treatment that was medically necessary.” While acknowledging that the physician may have been “intimidated” by Medi-Cal’s initial denial of payment, the court held that Medi-Cal did not “override” his medical judgment nor “render [him] powerless.” In Muse v. Charter Hospital, a North Carolina court considered a hospital policy requiring that patients be discharged when their insurance coverage ran out. The court ultimately found Charter Hospital liable on the grounds that this policy violated the hospital’s duty not to institute policies or practices that “interfere with” physicians’ medical judgment.
Taking these two cases as guidance, a court in the ACLU’s case against the Conference of Bishops might reasonably ask how significantly their ethical directive on pregnancy termination influenced the treatment decisions of the Mercy medical staff. In other words, are the providers at Mercy absolutely bound by the directive? Do they face professional repercussions for violating the directive, either on its own or as part of Mercy’s internal hospital policies? Regardless of what written hospital policies are, how much freedom do Mercy physicians feel they have in discussing or recommending pregnancy termination with their patients? All these questions will be relevant to determining whether the Conference of Bishop’s ethical directives could be deemed to “interfere with,” “override,” or “render powerless” physicians’ independent medical decision-making.
This is clearly a fact-sensitive inquiry, and it is impossible to know how a court will resolve the issue. But the key takeaway I want to highlight is this: if a court finds that the Conference of Bishops’ directive is not strong enough to effectively override medical providers’ treatment decisions (or if a court reaches the same conclusion with respect to the institutional policies of Catholic hospitals), those providers will be left in a bind. If they exercise their medical judgment and advocate for pregnancy termination in a case like Tamesha Means’, they will be at odds with the mission of their religiously-affiliated institution and will face scrutiny from hospital administrators. But if they remain faithful to the religious dictates of their institutions in situations that clearly violate the medical standard of care, they alone will face liability. How would you advise a health care provider in this position?