Can I Sue for a Misdiagnosis of Ectopic Pregnancy?

An ectopic pregnancy is an extremely serious medical condition. A misdiagnosis of ectopic pregnancy or a failure to treat the condition may lead to serious complications, including death or disability.

Due to recent legislative changes around the country following the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, treatment of an ectopic pregnancy is not as straightforward as it once was. For example, a woman with an ectopic pregnancy in Missouri may not receive the same treatment or same standard of care as a woman with an ectopic pregnancy in Illinois. Although the attorneys at Zevan Davidson Roman are experienced in investigating and handling cases involving the treatment of ectopic pregnancy, unfortunately women in Missouri now have fewer legal options when it comes to claiming malpractice in a misdiagnosis of ectopic pregnancy.

What is an ectopic pregnancy? 

Ectopic pregnancy occurs when the fetus attaches itself and begins to grow outside of the womb. In most ectopic pregnancies, the egg becomes lodged in the fallopian tube while traveling from the ovary to the uterus. In this condition, the fertilized egg is not able to survive or develop properly in the mother’s fallopian tube. In some rare cases, an ectopic pregnancy may occur within the cervix or ovary as well. In an ectopic pregnancy, the only way to save a mother’s life is to remove the abnormally developed cells from the attachment site.

What is the new anti-abortion law in Missouri and what does it mean for ectopic pregnancies?

On June 24, 2022, Missouri’s new anti-abortion law went into effect. Under RSMo. § 188.017, no abortion shall be performed or induced upon a woman, except in cases of medical emergency. Any person who knowingly performs or induces an abortion of an unborn child in violation of this subsection shall be guilty of a Class B felony, as well as subject to suspension or revocation of his or her professional license by his or her professional licensing board. It shall be an affirmative defense for any person alleged to have violated the provisions of subsection 2 of this section that the person performed or induced an abortion because of a medical emergency. The defendant shall have the burden of persuasion that the defense is more probably true than not.

Under § 188.015, a “medical emergency” is defined as: a condition which, based on reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.

Although no ectopic pregnancy is viable, nevertheless the medication typically used to terminate an ectopic pregnancy, methotrexate, is considered an abortion medication. There are no exceptions under Missouri law allowing abortions for fertilized eggs, embryos, fetuses, etc. that are implanted outside of the uterus and are therefore not viable.

While ectopic pregnancies become life-threatening as time goes on, an ectopic pregnancy diagnosed early enough is not necessarily a medical emergency as defined in § 188.015. For example, does an ectopic pregnancy which is diagnosed in a timely matter “so complicate the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy” to avert her death? It certainly complicates her medical condition, but is an immediate abortion necessary to avert her death, or could the abortion wait a couple of days?

A “major bodily function” is not defined with respect to § 188.017, but it is defined under RSMo. § 188.030 as including, but not limited to, “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.” A misdiagnosis of ectopic pregnancy could create a serious risk of substantial and irreversible physical impairment of the reproductive system of the pregnant woman, since later diagnosis can require removal of fallopian tubes which might impact a woman’s fertility. However, reasonable minds could differ on this topic. Ultimately, a defendant physician who is prosecuted under the Missouri law must prove that the patient had a medical emergency as an affirmative defense for a misdiagnosis of ectopic pregnancy.

Lawyers can debate the interpretation of the Missouri abortion laws, and whether inducing an abortion in any given context is a crime in Missouri. However, doctors will probably not engage in the same analysis as they are deciding how to treat their patients. The Missouri abortion law makes treatment of ectopic pregnancies confusing for doctors, and doctors cannot be expected to consult an attorney on the spot to decide whether their treatment of any given patient meets the definition of a “medical emergency.” Doctors in Missouri treating ectopic pregnancies, or considering that a woman may need an abortion for any other legitimate medical reason, now have to contemplate whether their medical license may be at risk or whether they could be prosecuted for a crime if they provide a medication which, absent this law, would be medically indicated.

If a doctor fails to diagnose and treat an ectopic pregnancy, do I have a case?

Under Missouri law, to pursue a misdiagnosis of ectopic pregnancy case alleging that a doctor is negligent, you need to obtain the opinion of a doctor practicing in substantially the same specialty, who states that the defendant failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that caused the damages you claim. Because of the Missouri laws prohibiting abortions, it is unlikely that any doctor would criticize another doctor for failing to treat an ectopic pregnancy when doctors are worried that such treatment could be prosecuted under Missouri law and cause them to lose their medical license.

The standard of care for treatment of ectopic pregnancies post-Dobbs will likely be different in Missouri than in Illinois. In Illinois, you may still be able to pursue a case for failure to timely diagnose and treat ectopic pregnancies.

If you have questions regarding whether you are able to pursue a medical malpractice claim for a misdiagnosis of ectopic pregnancy, contact the attorneys at Zevan Davidson Roman.