Born in the USA (32 page)

The second example is ACOG's Practice Bulletin number 5, published in July 1999, in which ACOG recommended against women attempting a vaginal birth after a previous cesarean (VBAC) except in a hospital with surgeons and anesthesiologists at the ready. The bulletin states, “That these adverse events during trial of labor have led to malpractice suits illustrates the need to reevaluate VBAC recommendations.” These examples demonstrate ACOG's willingness to make or reevaluate its recommendations because of fear of litigation.

But there is another side to the litigation coin. ACOG recommendations also allow obstetricians to use litigation to their advantage, to frighten doctors and hospitals and control and maintain their monopoly. ACOG has such far-reaching influence in American obstetrics that an ACOG recommendation can be used as an attack (or defense) in court the same way an FDA approval can. This makes doctors and hospitals that go against ACOG recommendations more vulnerable to litigation.

The ACOG recommendation against VBAC is a good example of how this works. As I discussed in
chapter 2
, cases of uterine rupture among women who had previously had C-sections were going up (almost certainly due to an increase in pharmacological labor inductions). That was becoming a problem for ACOG members because under these conditions, the chances of a uterine rupture leading to the kind of bad outcome that precipitates a lawsuit are relatively high. Though ACOG could easily have addressed the issue by discouraging the use of pharmacological induction, it instead discouraged VBACs by recommending that women be permitted to attempt VBAC only in a hospital where an obstetrician and anesthesiologist are always present. In one fell swoop, this recommendation had a profound influence on obstetric policies at larger hospitals, where administrators were compelled to cut back on VBAC; made it legally risky for smaller hospitals, clinics, and birth centers to support VBAC at all; promoted unnecessary C-sections (creating more business for obstetricians); and limited birth options for millions of American women.

Another area of U.S. obstetrics where a fear of litigation has played an important role is in the investigation of maternal deaths. As discussed in
chapters 2
and
3
, we know that in the United States, at least half of maternal deaths are not reported anywhere.
³⁴
We also know that nearly all of these women die in the hospital, not at home, and that with adequate medical attention, close to half of these women need not have died.
³⁵
American
women have a right to know that their chance of dying around the time of birth is increasing and why, and for many years, the CDC has pushed states to improve their maternal death audit processes. CDC staff members have worked with states to set up official maternal death surveillance groups.

While consulting on a case of maternal death due to Cytotec induction in South Carolina, I called the state health department to inquire about its process for investigating a case of maternal mortality. I was told that the state has four to six maternal deaths a year and it is not required by law that these cases be reported to the state. Furthermore, there is no place on a death certificate to indicate that it was maternal death (a death around the time of childbirth). That means that the state must pay someone to go through death certificates looking for maternal deaths, a difficult system with plenty of opportunity for mistakes. When a maternal death is found, the state health department reports it to the South Carolina State Medical Association, and the Medical Association is suppose to investigate. The physician responsible for the patient who died is to be called in for review in a closed session with only physicians attending.

The state medical association is a nongovernmental body with no legal authority, so all investigations are voluntary and have no power to actually change practices. Recognizing these weaknesses, the South Carolina State Health Department later started a maternal death surveillance group after urging by the CDC. Under the new system, when a maternal death was identified, the group sent two physicians and two nurses to the hospital where the death occurred as well as to the coroner. The team would abstract the records, remove all names, and report their findings to the maternal death surveillance group, which would then evaluate the case and make recommendations for changes in maternity care policy and practices. However, many obstetricians and hospitals feel threatened by any attempt to investigate maternal deaths, even in a process such as this where the names of doctors and patients are not made public and the goal is not to punish anyone but to understand what is causing these deaths, learn from the mistakes, and recommend improved practices. Not long after starting its work, the South Carolina maternal death surveillance group was discontinued. The official reason offered was “lack of funds.” However, I was told in confidence that the surveillance group experienced resistance from doctors and hospitals from the beginning, in the form of “delays in turning over records, lost records, and failure to appear at meetings.” Even today only a few states have a thorough audit of every maternal death, and only one state, Massachusetts, has a law, passed after intense lobbying by consumer
groups for the measure and intense lobbying by medical groups against it, mandating that newspapers report maternal deaths.

In stark contrast with the extremely high rates of litigation against obstetricians, midwives, who attend around 10 percent of births in the United States, are rarely sued. Some of the reasons for this are discussed in
chapter 5
, including the deep personal relationship that develops between a midwife and a pregnant woman. When things go wrong, a midwife is there for the woman and her family, unlike most doctors and hospitals, who immediately construct a stone wall. Also, midwives are much less likely to promise a perfect baby, as the midwifery model accepts that sometimes women and babies die around the time of birth.

Midwives do carry malpractice insurance, but with lower coverage, as they don't have “deep pockets,” and their premiums are also lower. In the rare case in which a midwife is sued, it is almost always after an out-of-hospital birth and after the family has been told by doctors that the reason for the death or impairment of the baby is the midwife and the out-of-hospital setting. In
chapter 6
, I described a case in Texas where a baby was born in an out-of-hospital birth center attended by midwives and the next day developed respiratory difficulty and needed to be hospitalized. Local doctors tried to use the case to change the regulation of birth centers in Texas. What was particularly interesting about this case is how, when the baby came to the hospital and the staff found out that it was an out-of-hospital birth, they assumed that the baby's difficulties were the result of bad management of the birth and told the parents that the baby had suffered from lack of oxygen during the birth. The hospital staff urged the family to sue the birth center and the midwives, and the family took their advice and sued. Investigation later found the cause of the baby's problems to be a genetic blood disorder, which had nothing to do with the birth or where the birth took place.

Also in
chapter 6
, I discussed the case of the baby with microcephaly born in an out-of-hospital birth center in which the doctors urged the family to sue the midwives and birth center, and in
chapter 5
, I discussed a case in which a home birth in Las Vegas was reported to the legal authorities as child abuse. Incredibly, doctors, who themselves hate litigation, are quick to report families to the authorities or urge families with a dead or damaged baby to sue the midwife or birth center.

Obstetricians, if they chose to, could learn a lot from midwives about how to practice maternity care in a way that does not encourage litigation.
This will not likely happen, however, for many reasons, one being that obstetricians are too upset by the litigation issue to be able to rationally assess their own role in it. They want the license to practice vigilante obstetrics and rightly see litigation as a threat to their being able to do whatever they jolly well want. This helps to explain the paradox of obstetricians protesting the litigation crisis while going right on with practices that inevitably lead to litigation.

So, while litigation may be a bad thing, as we have seen, it has become a necessary way to protect families. It provides a setting in which women and families can attempt to address concerns and hold doctors accountable in the one public forum that even doctors can't always evade.

Litigation has a second positive function as well: it is one of the few ways we have of putting the brakes on vigilante obstetric practices. In some cases, such as off-label use of drugs such as Cytotec, the normal mechanisms of drug regulation simply don't work, and our only avenues for promoting the proper use of drugs by doctors are public education and regulation by litigation. As I've said, there have been a number of cases of litigation following Cytotec inductions in the last decade, a fact that has not escaped the notice of ACOG and malpractice insurance companies. When the Searle Pharmaceutical Company sent a warning letter to all physicians regarding induction with this drug (see
chapter 4
), ACOG published an editorial in the
New England Journal of Medicine
saying that the letter
did
cause some doctors and hospitals to stop using Cytotec. ACOG went on to say that “ACOG received hundreds of inquiries from irate members who were concerned about the implications and the impact of the letter.”
³⁶
The fact that some doctors and hospitals were so scared that the Searle letter would leave them vulnerable to litigation that they stopped using Cytotec for induction illustrates the power of litigation to slow, if not stop, vigilante drug practices as well as its role as a symptom, alerting us to serious underlying problems in maternity care.

In all the attention being given to the “litigation crisis” and the needs of doctors, hospitals, managed care organizations, and insurance companies, there is little or no discussion of the needs of the woman and how to protect her and her baby in this “crisis.” And yet, until her needs are met, the crisis will not go away. The steps in the usual scenario that leads a woman or family to start litigation in obstetric cases are: (1) a bad outcome for the
baby and/or the woman with evidence of significant emotional or physical harm; (2) a sense of betrayal on the part of the woman or family because the outcome is unexpected; and (3) the family's sense that they are being stonewalled when they try to find out what went wrong. The family turns to the court out of frustration as the only avenue available to them for finding out what actually happened. So outlawing litigation and capping settlement awards will not solve the crisis. Litigation will stop only when there is sufficient transparency and accountability in maternity care for a birthing woman and her family to know what happened to her and to her baby and why.

Ironically, it is because childbirth has been medicalized that pregnant and birthing women are turned into patients and are protected as patients through laws governing patients' rights. Although there is a great deal of attention in the media given to the legal protection of doctors and hospitals, there is so little attention given to the legal protections for pregnant and birthing women that most women know nothing about these protections, and many journalists, politicians, and even health care professionals also know very little. So the rest of this chapter will look at these protections, which are primarily about informed consent and a patient's right to refuse treatment.
³⁷

The concepts of informed consent and the right to refuse treatment are supported by constitutional law (the right to privacy and self-determination protected by the First and Fourteenth Amendments); federal law (the Emergency Medical Treatment and Active Labor Act and the Patient Self-Determination Act); international tort law (which U.S. courts sometimes cite); as well as state laws and state-mandated medical ethics. They are also covered in the ethical guidelines of the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG). These laws provide all patients, pregnant or not, with certain fundamental rights:

•   The right to exercise self-determination and autonomy in making all medical decisions, including the decision to refuse treatment.

•   The right to bodily integrity. Any form of nonconsensual touching or treatment that occurs in a medical setting constitutes battery.

•   The right to be provided with the necessary information on which to base medical decisions, including a diagnosis; recommended treatments and alternatives; the risks, benefits, discomforts, and potential
disabilities of proposed medical treatments; realistic expectation of outcomes; a second opinion; and any financial or research interests a physician may have in proposing certain treatments.

•   The right to be informed of any potentially life-threatening consequences of a proposed treatment, even if the likelihood of experiencing such an outcome is rare.

•   The right to make medical decisions free from coercion or undue influence from physicians.

•   The right to have informed medical decisions witnessed, signed, and documented by the attending physician and another adult.

•   The right to revoke consent to treatment at any time, either verbally or in writing.
³⁸

There are only a few situations that are recognized as exceptions to these rights, the first being when a patient is in an immediately life-threatening situation that requires treatment to save her life. Another is when the physician determines that revealing all facts would have a bad effect on the patient, but medical ethics hold that this “therapeutic privilege” is rarely, if ever, justified. Another is when a court orders a treatment, but it's important to note that courts have upheld the right of pregnant women to decline treatment even in situations where the lives of their fetuses are threatened. Finally, diagnostic tests that are required by law enforcement agencies, such as drawing blood to test intoxication levels in impaired drivers, are considered an exception.