Were You Injured During Childbirth?
Rectovaginal fistula or other labor injury?
Were you hurt during labor and delivery because of your obstetrician’s outdated obstetrical practices like routine episiotomy?
Kesha Zaffino, is a skilled advocate for mothers injured during labor and delivery. She is a mother and has worked with doulas, midwives, lactation consultants and other stakeholders who have a vested interest in healthy moms and babies. Arkansas has some of the lowest breastfeeding rates in the nation, highest cesarean rates, and the third highest maternal mortality rate in the country. Morbidity, or lasting negative health effects, from outdated laboring practices rampant in Arkansas hospitals is a serious problem.
We know that many of the things doctors have been doing to women in labor are not “evidence based” meaning they have no benefits backed up by evidence. In fact, these procedures cause more harm than good. If these practices are not based on evidence then what are they based on? It is habit and doctor’s personal preference. Additionally, hospital policies are slow to change and “require” women submit to certain tests or procedures. Examples of harmful practices include:
- Dads not “allowed” in the delivery ward with their wives
- Fetal monitoring with electrodes literally screwed into a baby’s scalp while still in the birth canal
- Pushing in the lithotomy (on your back) position
- No eating during labor
- IV fluids
- Continuous Fetal Monitoring
- Taking baby away to a nursery
- Routine episiotomy
- Forceps and vacuum extraction
- Yanking on the cord to expel the placenta (can cause a hemorrhage)
- Twilight Sleep (google this one)
Let us review your medical records and determine if you have a medical malpractice case. Kesha has worked Labor Injury cases and has reviewed medical records in conjunction with medical experts. Because of restrictive and pro-medical legislation these cases in general are very difficult for Plaintiffs to pursue in Arkansas. Labor Injury cases can be even more challenging because of our culture surrounding birth and biases about it. Kesha understands that a doctor should get your consent and doesn’t get to cut you without permission to “get the baby out”. She also knows which obstetrical procedures often cause serious harm and complications for mother.
Informed Consent Is a Conversation Not a Piece Of Paper
Informed consent means that your doctor has a conversation with you about the risks and benefits of whatever it is he or she is recommending but the ultimate decision rests with you. When this happens, your autonomy is respected. Society must recognize that something called medical uncertainty does indeed exist. Many pregnant mothers have been told, “your baby will be born with ________” (you fill in the blank) and yet baby is born happy and healthy. Mother’s instinct and intuition can and often do prevail over a medical diagnosis.
Even the American College of Obstetricians and Gynecologists agrees:
Pregnant women’s autonomous decisions should be respected. Concerns about the impact of maternal decisions on fetal well-being should be discussed in the context of medical evidence and understood within the context of each woman’s broad social network, cultural beliefs, and values. In the absence of extraordinary circumstances, circumstances that, in fact, the Committee on Ethics cannot currently imagine, judicial authority should not be used to implement treatment regimens aimed at protecting the fetus, for such actions violate the pregnant woman’s autonomy.
Is it Assault or a Battery if a doctor does something to me without my consent?
It may be! If you are a competent adult and the doctor was not acting in a true emergency where your consent could not be acquired then what happened may be considered a tort. Assault and Battery are “torts” but you must show that the harmful action was done with the intent to cause serious physical injury. Two recent high profile cases where laboring mothers were assaulted include Kimberly Turbin of California and the Caroline Malatesta case out of Alabama. Research those names to learn more. Kimberly’s case was pursued as a battery because the statute of limitations for a medical malpractice claim had expired by the time she was able to acquire her medical records. The elements of assault and battery are different in each state so always seek legal advice if you believe you have been a victim of assault or battery.
Delayed Vaccination and Anti Vaccination
Parents who choose not to vaccinate and those who wish to use a delayed vaccination schedule are often discriminated against by their doctors or worse dropped as a patient without warning leaving the child without a medical provider. This is contrary to American Medical Association ethics opinions that state doctors should afford patients the opportunity to find another doctor first. In other words, doctors should not abandon their patients.
DID YOU KNOW?
You have a legal right to tell the ambulance/ Emergency Medical Services to take you to the hospital of your choice.
UAMS here in Little Rock is a state facility. You must go before the Joint Claims Commission to have your grievance heard.
You have the right to refuse to allow a student or resident at a teaching hospital perform a procedure on you or attend to you.
You have a right to ask for a different nurse in your labor and delivery room.
You have a right to decline outdated obstetrical practices which are not evidenced based, for example, no eating or drinking, pushing in the lithotomy position (on your back), or Pitocin (artificial oxytocin to increase the duration, intensity and frequency of contractions).
RESOURCES
AMA ethics opinions
- American Medical Association, Informed Consent (Mar. 7, 2005)
- American Medical Association, Opinion 10.02 – Patient Responsibilities (June 2001)
Relevant Court Cases
Cruzan v. Dir., Mo. Dep’t. of Health, 497 U.S. 261, 271 (1990) noting that “most courts have based a right to refuse treatment either solely on the common law right to informed consent or on both the common law right and a constitutional privacy right and competent person has a constitutionally-protected liberty interest in refusing unwanted medical treatment."
Konovalova v. Russia, no. 37873/04, at 5-8 (Eur. Ct. H.R. 2014) holding that under the Right to Privacy and informed consent, women can refuse the presence of medical students when they give birth. Noting the importance of informed consent in international authority, including The Convention for the Protection of Human Rights and Dignity of the Human Being, The Committee on the Elimination of Discrimination Against Women, and A Declaration on the Promotion of Patients’ Rights in Europe.
McFall v. Shimp, 10 Pa. D. & C. 3d 90 (July 26, 1978) A man sued his cousin to get life-saving bone marrow from him. The court refused and held that, "For our law to compel [the] defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn."
LINKS
http://birthrightsbar.org/ ---Please read the briefs. They are not necessarily brief but very interesting with testimonials, case law, Supreme Court decisions, and ethics opinions related to medico legal issues in childbirth like forced cesareans sections and human rights in childbirth.
http://www.humanrightsinchildbirth.org/right-to-informed-consent/ ---good information on your right to refuse medical treatment and informed consent.
Jen Kamel VBAC Facts--- Lots of good information on VBAC (Vaginal Birth After Cesarean) and the myth that one surgical birth means another. http://vbacfacts.com/
The Big Push for Midwives, a group that pushes for access to CPMs or Certified Professional Midwives as an alternative to the routinized hospital births her in the states. http://pushformidwives.nationbuilder.com/
ICAN-the International Cesarean Awareness Network has a chapter in Arkansas. Online forums are hosted and provide excellent support. The group’s mission is to prevent unnecessary cesarean births to improve maternal child health. One in three women now have birth by cesarean and women in 2017 in the United States are now twice as likely to die in childbirth as their mothers were. This is attributed to the high rates of unnecessary surgical births. http://www.ican-online.org/
http://birthmonopoly.com/ to listen to Birth Allowed Radio