OB/GYN Medical Malpractice Insurance: How to Align Your Liability Coverage with Abortion Legislation

Recent shifts in state and federal abortion legislation have significantly impacted the practice of obstetrics and gynecology (OB/GYN) in the United States. At the intersection of healthcare and law, OB/GYNs must navigate a complex landscape to minimize liability while delivering safe, compliant care. This evolving regulatory environment shapes medical malpractice and access to care, highlighting the need for robust malpractice insurance.

This article examines the impact of abortion legislation on OB/GYNs and offers six key malpractice insurance considerations to protect against liability risks. Consider these policy features to safeguard your practice and minimize liability exposure.

In 2022, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, ending federal protection of abortion rights and returning regulations to individual states.

As a result, abortion laws vary significantly across the country. While some states maintain broad access, others have instituted abortion bans or restrictive measures. These restrictions may include mandatory counseling, ultrasound requirements, or waiting periods before an abortion can be performed, creating a complex and varied legal landscape for reproductive care in the U.S.

A disjunct legal environment presents many challenges for OB/GYNs, including:

• Clinical Implications
  Restrictions on abortion services extend beyond elective procedures, influencing treatment plans for ectopic pregnancies, miscarriage management, and other cases where pregnancy termination is medically necessary.OB/GYNs face the complex dichotomy of managing clinical practices, treatments, and medications that comply with the medical standards of care without violating state and federal law.
• Legal Ambiguity
  Lack of awareness about current abortion laws is not a defense against legal or liability claims, making it crucial for physicians to stay up-to-date on federal or state regulations affecting obstetric and gynecological restrictions or standards of care.
• Internal Conflict
  Some physicians might struggle with their state’s stance on abortion and how it contextualizes the patient-provider relationship or their professional obligation to provide zero-harm, evidence-based care.
• Risk Factor
  As a high-risk medical specialty, OB/GYN practices may see their risk profiles reevaluated by insurers, considering the new complexities introduced by state-mandated maternal and fetal health regulations.

The reversal of Roe v Wade and subsequent patchwork of state abortion laws can impact how and where OB/GYNs choose to provide reproductive care. Restrictive abortion laws can increase liability exposure for physicians while complicating healthcare access for some patients. As such:

• OB/GYN shortages are more substantial in states that prohibit abortion.
  According to a 2024 report released by the maternal and infant health non-profit March of Dimes, 1 in 3 U.S. counties lack obstetric physicians to provide care, and states that prohibit abortion have fewer OBGYNs for every 10,000 births in comparison to states where abortion is less regulated.
• Patients are crossing state lines for OB/GYN care.
  Because legal jurisdiction is established based on the patient’s location, OB/GYNs who treat out-of-state patients can be exposed to additional liability risks. Providers must comply with the state laws of the patient’s state and the state(s) that issued their medical license. This becomes particularly important regarding state-specific definitions of informed consent, a common driver of medical malpractice claims.
• Telemedicine allows OB/GYNs to treat patients in multiple states.
  Medication abortions can be prescribed remotely via telemedicine, allowing OB/GYNs to offer consultations and prescription services in restrictive states. However, significant legal and malpractice implications must be considered:
  • OB/GYN must be licensed in the state where the patient is located during the consultation.
  • Medication abortion prescriptions are subject to additional federal & state regulations.
  • Informed consent requirements for the patient AND provider must be met to adhere to standards of care.

Given the frequent and unpredictable nature of legislative changes, it is crucial that OB/GYNs proactively manage their medical malpractice insurance to ensure adequate protection.

These considerations can help reduce liability exposure for you & your practice:

1. Review Insurance Coverage Details
   OB/GYNs should carefully review their current medical malpractice policy to understand exactly what is or isn’t covered by the insurance provider, particularly regarding abortion services and telemedicine. Some policies contain exclusions for specific procedures or treatments, so ensure all your practice offerings are covered.
   • Policy Limits: With the potential for significant financial damages in lawsuits related to pregnancy and abortion services, higher policy limits may be advisable.
   • Telemedicine Coverage: Confirm that the malpractice insurance policy explicitly covers remote telemedicine services, including interstate consultations and medications.

With a SURGPLI broker as your single point of contact , OB/GYNs can save time and effort comparing a wide range of policies, carriers, and rates.

2. Evaluate Policy Endorsements & Riders
   For extra protection and peace of mind, consider adding an endorsement or rider to a new or existing policy that explicitly covers telemedicine services and/or out-of-state practice, depending on your location and services.
   • Criminal Defense Coverage: In some states, under certain circumstances, performing an abortion may carry criminal penalties. Medical malpractice policies don’t typically cover criminal defense, but some insurers offer an optional rider or endorsement covering criminal defense costs.
3. Select an A.M. Best A-Rated Carrier
   A-rated medical malpractice insurance companies have a strong reputation for financial stability and legal representation for policyholders in lawsuits. Focus on insurance providers specializing in medical malpractice for OB/GYNs, understanding the risks associated with reproductive healthcare.
4. Legal Support
   Choose a policy that offers robust legal support in the event of a claim or lawsuit, specifically for legal defense against alleged violations of state abortion laws and disciplinary actions by state medical boards.
5. Planning to Relocate?
   If you’re considering moving your practice to a new state, tail insurance can help you avoid gaps in coverage and protect against future claims that might arise from care delivered at your original location.
6. Stay Informed
   Keep yourself up-to-date on any changes in state laws or malpractice insurance regulations. Continuing medical education (CME) seminars focused on reproductive health and/or malpractice risk management can support this effort.

By securing comprehensive medical malpractice coverage and understanding the legal implications of treating patients across state lines, OB/GYNs can deliver quality women’s health and reproductive care while minimizing legal and professional liability.

SURGPLI brokers specialize in securing robust coverage for OB/GYN physicians and surgeons in high-risk specialties who are often targets for medical malpractice lawsuits

Will your current malpractice policy be enough if your state reverses or passes new legislation on abortion?

Find out now by contacting a SURGPLI broker for a free consultation & quote, or call us at 800-969-1339.