Keep current on the changing medicolegal landscape

An expert offers an overview of the changing medicolegal landscape and how physicians can navigate it.

Depending on where and how you practice medicine, you may be dealing with substantial changes underfoot, as laws on gender-affirming care, reproductive health care, and other areas of medicine are being reshaped in many states.

At a plenary lecture at the annual meeting of the American Medical Women's Association in March, Elizabeth Valencia, MD, JD, offered an overview of the changing legal landscape and advice to help physicians navigate it.

Governmental action is affecting gender-affirming care reproductive health care and other areas of medicine Image by doomu
Governmental action is affecting gender-affirming care, reproductive health care, and other areas of medicine. Image by doomu

Actions of the legislative, executive, and judicial branches of government can have substantial ripple effects, said Dr. Valencia, who is an assistant professor in the department of radiology and immediate past inaugural enterprise associate dean of diversity, equity, and inclusion at the Mayo Clinic Alix School of Medicine in Rochester, Minn.

Dr. Valencia offered several examples of sentinel statutes that have had wide-ranging effects on U.S. society over the years, including the 19th Amendment to the U.S. Constitution in 1919, the Equal Pay Act in 1963, the Civil Rights Act in 1964, the American Disabilities Act in 1990, and the Federal Respect for Marriage Act in 2022. These actions are often the result of policy and grassroots efforts over years and decades, she noted.

"For example, the 19th Amendment to the U.S. Constitution was a policy advocacy effort for nearly 50 years before it was ratified and passed," Dr. Valencia said. Such legislative changes "have had a profound impact on the landscape for business, for our societies, for how we practice medicine."

As an example of an executive action that targeted a related issue more recently, Dr. Valencia pointed to President Biden's 2021 executive order creating the first gender policy council. The council is charged with advancing gender equity and equality as a matter of human rights, justice, and fairness, including ensuring equity in leadership across industries, and safeguarding reproductive rights. "This is how we're driving policy and changing the impact on business and medicine and navigating the changes in the landscape [via] executive actions," she said.

Perhaps the biggest changes currently are being made by the judicial branch, Dr. Valencia said. Judicial policymaking can be ahead of legislative congressional action or executive action, as in 2015, when the U.S. Supreme Court gave same-sex couples the right to marry and required all states to recognize same-sex marriages.

The judiciary can also change public policy by reversing its own precedents, she said, as in the Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and ruled that there is no U.S. constitutional right to abortion.

Dr. Valencia also discussed a case at the state level from February 2024, in which the Alabama Supreme Court expanded the definition of unborn children to include embryos that are fertilized and cryopreserved through in vitro fertilization (IVF). As a result of that ruling, Alabama's state legislature passed a bill to shield physicians who perform IVF from lawsuits and criminal charges stemming from death of or damage to an embryo.

"This is bringing reproductive rights from another perspective, another angle, to the forefront of policy, to the forefront of law," she said. "It's impacting business and it's impacting health care and how we practice medicine."

The wake of Dobbs v. Jackson has led to changes around the country, with 25 states to date enacting total or partial abortion bans, Dr. Valencia reported. "What we're seeing is a patchwork of variability of exceptions to these bans, and exceptions pertaining to the health and life of the pregnant person and also regarding exceptions for rape and incest or fetal anomalies," she said. "As these are being contested, also in litigation, there's also movement at the federal level, as well."

This can be difficult to navigate as a clinician, especially for those whose practices cross state lines, for example, living in Texas but having a license to practice telemedicine in New Mexico, said Dr. Valencia.

Some states have taken proactive steps to protect clinicians through statutes, executive orders, and amendments to state constitutions; 12 so far have enacted shield laws. "This provides protection for health care providers and patients who access abortion care, and it protects them from adverse actions from the antiabortion state if there's been interstate travel or telemedicine in providing the care that's sought for," she said.

Another area where law is changing medicine is gender-affirming care, Dr. Valencia said. Twenty-three states have enacted laws and policies limiting access to gender-affirming care for minors, with 21 of 23 imposing professional or legal penalties on clinicians who provide it. Sixteen states are currently involved in litigation, and the law in one state, Arkansas, has been overturned. "That was just recently, so more to watch on that front as it impacts the practice of medicine in these states," she said.

Given how fast the legal landscape can change and how much it can vary, Dr. Valencia offered some recommendations on how clinicians can keep up. "I like to keep things simple," she said. "I think it's important to break things down into a manageable approach."

Her three-step plan involves looking at issues from the standpoints of compliance, efficiency, and mitigation. To maintain compliance, first identify and monitor knowledge gaps. The best way to do this is through three touchpoints: a national medical society, a state medical society, and your own institution, she said. Connect with these places in that order on these issues at least quarterly, she advised.

By going to the national and state organizations first, "you have the foundation, the breadth, the sense of the overall issue, the impact, its relevance, to ask the questions when you go to your institution," she said. "'How are we reconciling A and B? What is the contingency plan for C and D?' … If we just start with our institution, sometimes we don't see the full landscape."

For the second step, efficiency, use the knowledge that you've gained, Dr. Valencia said. "Now that we know better, we have to actually do something about it, so take the new data points and be intentional about adopting policies and workflows to manage the risks," she said.

Whether at a divisional, departmental, or institutional level or through state, local, regional, or national leadership, best practices should be based on how things have changed and where they are headed, she advised.

"There's a lot of jurisdictions that are currently in litigation, and there are things being done at a federal level, but in the interim, we need a policy and a workflow to manage the risk," she said. "I would ask you to think about what your practice does, what your organization does, and how do we leverage things to make it more efficient in terms of IT AI. Is it an electronic medical record? Is it a link out? Is it a pick list in your dictations? There's opportunities there to help manage that."

The last step in her plan is mitigation. "The acronym I like to use is 'CDC.' You want to consult the experts, you want to document what the result of that consult is, and then you want to communicate what the next steps are," she said. "This will help protect your patients; it will help give them their options. It'll help protect you so that you can focus on patient care and know that you're providing the most optimal care in the current environment that we have, and it will also help document, and that's important."

Dr. Valencia concluded her talk by calling for physicians to receive accurate, timely, centralized updates about regulatory changes that will allow them the confidence to both continue to care for patients and advocate for future needed changes. "It's consistency, and it's teamwork, and it's collaboration," she said. "As long as we're connected, we will see this through."