May 17, 2014

"I have decided to override her refusal to have a C-section," wrote the doctor...

... on the hospital record of the woman who is suing.
Dr. Howard Minkoff, chairman of obstetrics at Maimonides Medical Center in Brooklyn, whose articles on the subject of patient autonomy have been published in medical journals, said he believed that women had an absolute right to refuse treatment even if it meant the death of an unborn child. “In my worldview, the right to refuse is uncircumscribed,” Dr. Minkoff said, cautioning that he was not commenting on the particular facts of Mrs. Dray’s case. “I don’t have a right to put a knife in your belly ever.”

Such a person might be accused of being immoral or a terrible mother, he said, “but we won’t tie you down.”
Doctors perform too many C-sections because they're too afraid of malpractice lawsuits. That risk-aversion could be balanced by liability when the doctor does perform the C-section.

In this case, the doctor allowed the woman (who had had 2 previous C-sections) to attempt to go through labor:

At first, she said, Dr. [Leonid] Gorelik appeared to relent, saying he would give her an epidural for the pain and then reconsider. “I was begging, give me another hour, give me another two hours,” Mrs. Dray said. Her mother, who was there, supported her, and the doctor said, “I’m not bargaining here,” Mrs. Dray said.

Mrs. Dray said she kept begging on the operating table. His answer, she recalled, was, “Don’t speak.”
The linked article, in the NYT, seems quite supportive of the mother's control over the medical decisionmaking process. Other than the material I boldfaced in Minkoff's strong position in favor of the woman's autonomy, there's nothing at all sympathetic to the doctor's calling to save the life of the child. The comments, however, go very strongly in that direction. Here are some of the comments readers have rated most highly. I've added some boldface, and each paragraph is a different commenter:
I am speechless. The doctors are supposed to allow pregnant women to do anything they would like even if it means the death of the unborn fetus?... I am sorry but I really don't have much sympathy for this woman. If she would really like a natural birth, why not just stay at home or go to a birth center/ simply hire a midwife at home that does not perform C-section? Why bother to go to a hospital and refuse the professional advice of the doctor?
I have absolutely no sympathy for this woman at all. Her sense of entitlement is simply galling. She's having a baby. The most important thing here is to ensure the delivery of a healthy baby, not to satisfy some preconceived notion that she should have a vaginal delivery. The doctors who performed the C-sections have two patients to care for: the mother and the child. This is not a case of an abortion where the child was unwanted, in which case the pregnant woman is the only patient. She clearly wanted her baby, which means in this case, the doctors had every obligation to ensure that the baby would come out as healthy as possible. It's not as though she arrived at the hospital and was immediately strapped down and forced to have surgery. She was given hours to try a vaginal delivery and it didn't work. Perhaps she had a pelvis that was too narrow, or perhaps the fetal monitor was beginning to show signs of distress, or perhaps the baby's position was off. No matter the reason the doctors decided to perform the C-section, they were doing their job to ensure that a healthy baby was born. I agree that patients should have a say in how they get care, but she seems to forget that she wasn't the only patient in the room. Let's not kid ourselves and think that if the baby was born vaginally but brain damaged...you think she wouldn't be suing in that case, too?
As an anesthesiologist, I am biased. But after 2 C-sections, the risks of a vaginal birth increase dramatically. I do not blame the doctors for protecting themselves by enforcing another C-section... let them err on the side of preserving life and function, and pray they are not sued. That will mean less OBs out there for the rational souls that understand the risks and don't want their kids to be another notch on the statistics pro/con ladder.
If this woman had 2 prior C-sections then the doctors are absolutely right that vaginal delivery was exceedingly risky. I almost laughed when I read that the woman is charging the doctors and hospital for “improperly substituting their judgment for that of the mother." What?? That's what they are supposed to do. They are doctors, she is not.... I am a woman and as pro-choice (in all areas) as anyone can be, but this is nonsense.

I think there is more to this story. If Mrs. Dray was determined to have a vaginal birth this time, that is something she and her OB should have discussed in great detail, during her pregnancy. Did she not reveal her desire for a vaginal birth until she was in labor? That would be odd and certainly a surprise for her OB. What was the medical reason given for the necessity of the c-section? Surely the physician documented why he thought the fetus was in danger during a vaginal birth.

While I agree that patient autonomy is paramount, was Mrs. Dray willing to sign away her right to sue if anything happened to the fetus during a vaginal birth? And even if she was, would that have held up in court (I doubt it)?

I agree with Dr. Minkoff's "worldview", where he says, "I don't have a right to put a knife in your belly, ever." I have been a surgical nurse for 25 years and I can honestly say I have NEVER experienced a patient being forced into an OR. Where was the surgical consent in this case? Was one signed? Who signed it? Because if it wasn't the patient or her legal representative with documented medical power of attorney who signed, I don't think the surgeon had any right to perform a section. Yes, she has a healthy baby. But her rights were trampled (while her bladder was perforated). This must have been a nightmare for the surgical & obstetrical teams--I sympathize.
And that last comment reveals a second issue that the article completely omitted. What consent form did the woman sign? I'm going to guess that the woman agreed, in writing, that the doctors could override her preference and force the surgery on her. I suspect this case is about the right to withdraw consent in the middle of treatment, after the doctors are committed to providing care. With the baby's life at stake, how can the woman win this lawsuit?

And what does this have to do with ideas about abortion? Here's a hypothetical. The doctor says (honestly and correctly): "I have to do a C-section or your baby will die." The woman says: "I still don't want a C-section, it's my right to choose, and if that means the baby will die, I'm calling this an abortion." Is the doctor supposed to step back and say "Okay, your choice"?

28 comments:

Amexpat said...

As a rule, a doctor should inform a patient of the chances involved in having or not having a relevant procedure and let the patient make the decision.

The best way to override this rule is through statutory law, which would give both parties notice of what has to be done and avoid the expense and lack of clarity of deciding these issues through case law.

Phil 3:14 said...

Having been there many times professionally, most mothers will reflexively agree to anything that's in the interest of the health of the baby. That's powerful and suseptable to abuse.

OTOH, its jarring when a laboring mom refuses such a recommendation. You can't help but wonder what the child's upbringing will be like.

sydney said...

Absolutely, it is the presence of the third patient who has no voice- the baby - that makes the case for the doctor. The mother doesn't have any idea of the risk she is posing to her baby by going forward with the attempt at vaginal delivery past a certain point. The doctor does. He was obligated to act to preserve the life of both mother and baby. If it was just the mother's life at stake or her risk of terrible complications, then she has the right to refuse.

trumpetdaddy said...

There isn't anywhere near enough information in the story to assess this case.

As a father of 4, the first of whom was a section, and the subsequent three being home-brths, I am sympathetic to a woman's side in the abstract.

But here we have a case where among the few things known in the story is a patient with a history of doc shopping, a hospital claiming lower-than-average section rates and higher-than-average VBAC rates, and a situation in which both the hospital counsel and chief of OB/GYN signed off on the procedure.

What the reporter doesn't tell us is how long she was under the attending physician's care and what the nature of her birth plan was. Kind of critical to assessing the situation to have that information.

BDNYC said...

Althouse is attempting to spark a debate over last minute abortion. When does life begin? When does a woman's right to choose end? Can informed consent to allow the doctor to make certain medical decisions effectively vitiate her right to choose abortion?

It is interesting.

Julie C said...

My first birth was an unplanned C-section. With my second child, the doctor advised me to try a VBAC. I pushed for two hours and my uterus ruptured. Then I had an emergency c-section followed by a week's stay in the hospital while they gave me lots of intravenous antibiotics (they hadn't had time to scrub in). My son came out purple and spent a couple of days in the NICU. I'm on the doctor's side on this one.

Vaginal birth is overrated in my book. I like to joke (only with my husband or close female friends of course) that I have the vagina of a teenager!

Chaswjd said...

I would be surprised if the case, in its present form, makes it past summary judgment. Informed consent violations are batteries. But battery is privileged to save the life of a third party. And since the baby is clearly third trimester, Roe doesn't prevent the state from acting to preserve the life of the baby.

Largo said...

Whenever I see someone write "the doctor had an obligation to do something", I wish they had written "the doctor had the obligation to CUT HER OPEN." I am not denying the obligation. But why mince words?

Ann Althouse said...

"My first birth was an unplanned C-section. With my second child, the doctor advised me to try a VBAC. I pushed for two hours and my uterus ruptured. Then I had an emergency c-section followed by a week's stay in the hospital while they gave me lots of intravenous antibiotics (they hadn't had time to scrub in). My son came out purple and spent a couple of days in the NICU. I'm on the doctor's side on this one."

Wow. I'm glad you two got out of that okay.

My first baby was an unplanned C-section (for cephalo-pelvic disproportion and failure to progress) and on that basis the doctor recommended a planned C-section for the second one and explained the risks (basically, what happened to you) of trying to give birth vagina-style, and I chose the C-section.

Ann Althouse said...

"I would be surprised if the case, in its present form, makes it past summary judgment. Informed consent violations are batteries. But battery is privileged to save the life of a third party. And since the baby is clearly third trimester, Roe doesn't prevent the state from acting to preserve the life of the baby."

I don't think you even need to go that far. I think she did sign a consent form and agreed that there could be an emergency that required a C-section and agreed to accept that if the doctor thought it was necessary. Why would a doctor trained to deliver babies accept patients that required him to refrain from using his skills and his trained judgment? I don't get it. The woman chose this doctor and he has his terms. Why should he be forced to let a baby he could save die because the woman is set on having a vaginal birth?

And, frankly, ladies, I get it that you're proud of the many things you can do with your vagina, but there are more important things in the world than checking off items on your vagina bucket list.

trumpetdaddy said...

This is the kind of reporting on science and law intersecting that really irritates me.

It is a relatively easy thing to check on section and VBAC stats to verify the hospital spokesman's claim. There are several medical agencies that collect that information. Similarly, stats on OB/GYN malpractice rates and cases for that particular hospital staff, and the attending physician specifically, are also able to be obtained. If the hospital or the doc involved have better-than-average rates on those measures, it undermines the case that she was "brutalized" by a "rogue doctor" or some such thing.

Secondly, the plaintiff's counsel surely has a copy of the standard consent forms from the hospital, if not a copy of the actual forms his client signed. The reporter indicates nothing about those forms, which leaves the implication that what is on them is damaging to the narrative the counsel is trying to sell through the reporter.

As I said above, no mention is made of the length or nature of her patient relationship with the particular physician who performed the section. Was he just on duty that night? Was he her main OB/GYN throughout? Kind of makes a difference.

There are many legitimate reasons to have a C section. There are many frivolous reasons, too. And contra the implication of Althouse's snarky last sentence about proving things with their vaginas, women's bodies are designed to birth babies in general, and sections should be very minimal for the broad population of child-bearing-age women.

The over-use of C sections for non-critical medical reasons is a legitimate issue and trivializing women attempting to do what "nature intended" when other issues are minimal or not present, is condescending.

That said, this particular case is, on the face of it, a very poor one with which to make that point. It is not helpful for the press to use cases such as this one to try to be an example of "normal" VBAC situations thwarted by "oppressive" OB'GYNs, because it sounds very not-normal, indeed.

Julie C said...

Vagina bucket list! I love it!

Althouse, my understanding is that for a time, doctors were encouraging the VBAC. And there has evidently been a rise in uterine ruptures (I think it is still a single digit percentage but on the higher end of single digits) so now doctors are rethinking this whole VBAC business to go back to what you described.

I live in a fairly small town. My son (#2) has two other friends whose mothers also had uterine ruptures within months of mine. How weird is that?

Jupiter said...

Is the doctor supposed to step back and say "Okay, your choice"?

Well, yeah. Isn't that what all those umbras and penumbras say?

Ctmom4 said...

Women like this are why we can't have nice Ob-GYNs. When I was having my kids 20 years ago many Ob-GYNs were going GYN only, for reasons like this.

Smilin' Jack said...

“I don’t have a right to put a knife in your belly ever.”

Jesus, do I seriously live in a country where that statement is controversial? I'm not a lawyer, thank God, but I'm pretty sure signing a contract giving a guy the right to stick a knife in you doesn't actually give him the right to do it.

Zach said...

There's a basic tension between the ideas that the doctor is responsible for a good outcome, while the patient gets to make all the decisions. You can define the boundary line wherever you want, but you'll still get tough cases that lie right up against it.

In this particular case, I think that you have to side with the doctor. He went forward with Plan A, and only ejected when circumstances dictated.

Arguments that a patient has an absolute right to refuse care are oversimplified and idealistic. For one thing, we don't have the legal infrastructure to support that absolute right. Even if the doctor accedes to the mother's clearly stated wish, is that a strong defense to a malpractice or wrongful death suit? For a second, do we have the moral infrastructure that would allow him to do this without feeling or being judged as a coward?

A doctor in a medical situation is the expert. He shouldn't set his expertise aside lightly.

Smilin' Jack said...

With the baby's life at stake, how can the woman win this lawsuit?

And while they were in there, they should have sliced out one of her kidneys and given it to someone on the transplant waiting list. The bitch doesn't need two kidneys, and someone's life was at stake!

Flowers said...

Actually, Smilin' Jack, signing a contract permitting a doctor in his good judgment to out a knife in you means he can start sharpening.

Martha said...

Could the hospital have gotten a court order to allow the C-section on the grounds of protecting the fetus?

The full term fetus is also the ob's patient. Where was the father during labor and what was his opinion?

I was 42 1/2 weeks pregnant with my first child when I finally went into labor. After 10 hours of no progress my husband and I begged the ob to perform a C-section. And thank God for the C-section--the baby weighed 10 lb. 6 oz.at birth. The extra 2 1/2 weeks in utero packed on the pounds.

grackle said...

“In my worldview, the right to refuse is uncircumscribed,” Dr. Minkoff said, cautioning that he was not commenting on the particular facts of Mrs. Dray’s case. “I don’t have a right to put a knife in your belly ever.”

Oh yeah, SURE he wasn't commenting on the case. We're all convinced of that. Right? Sarcasm aside, if he comments at all when asked about that case, ipso facto, he's commenting on the case.

I'm pretty sure signing a contract giving a guy the right to stick a knife in you doesn't actually give him the right to do it.

Putting surgery and stabbing on the same level is like equating a college fraternity to the Hell's Angels - which goes double for the doctor, who should've known better. Hashtag ridiculous

Arguments that a patient has an absolute right to refuse care are oversimplified and idealistic … we don't have the legal infrastructure to support that absolute right … if the doctor accedes to the mother's … wish, is that a … defense to a malpractice or wrongful death suit? … do we have the moral infrastructure that would allow him to do this without feeling or being judged as a coward?

A thoughtful comment. Thank you.

Michael K said...

She had the absolute right to have a home birth and the consequences thereof. Ruptured uterus risks two lives, not just the baby's. The old C-section method was incompatible with subsequent C section. Low segment C section can be compatible.

The highest C section rate in the world, the last time I looked was Brazil. The invention of the fetal monitor is what led to high C section rates.

HoodlumDoodlum said...

Ann Althouse said...
Is the doctor supposed to step back and say "Okay, your choice"?
Well, it's her body, Prof, so obviously it's her choice. You've mentioned that trying to tell women what to do with their bodies is always a political loser so I'm not sure this is a serious question.

And, frankly, ladies, I get it that you're proud of the many things you can do with your vagina, but there are more important things in the world than checking off items on your vagina bucket list.
Body shaming! Patriarchal war on women! You can't question women's choices; remember "At the heart of liberty is the right to define one's own concept of existence, of meaning..."? Casey drew a line at viability--do you think the commenters you quoted would?

Ambrose said...

Reading one side of legal pleadings can be very misleading. While you cannot lie, you can shape the facts. I can't believe the hospital and doctor would have put themselves in the position of not being able to intervene. As Ann and others have guessed, they must have had a consent to go C if necessary. Otherwise they would not have let her in the door.

SeanF said...

Julie C: I like to joke (only with my husband or close female friends of course) that I have the vagina of a teenager!

I hate to tell you this, but the vast majority of the people on this website - quite possibly all of them, in fact - are neither your husband nor your close female friends.

Julie C said...

SeanF. - then it's a darn good thing I can tell the difference between typing something on a computer keyboard and telling a story at a dinner party!! Whew!

CatherineM said...

Not surprised by this. The elevation of the mother to some sort of supernatural all knowing being by the likes of Oprah deserves part of the blame. Years an years of training and experience? So what! Mommy instinct is all that's needed.

DKWalser said...

Our facts were very similar to the ones being discussed, with an important twist. Our first two children were delivered by emergency c-sections. After hours of labor, my wife hadn't dilated. Both she and the babies were exhausted.

With our third, before we became pregnant, the doctor refused to consider a vaginal delivery. We were told we'd need to go elsewhere if that's what we wanted. For nine-months of prenatal care, the subject of vaginal delivery was never discussed. It simply wasn't an option.

My wife went into labor a few days before the scheduled delivery. We were greeted by the doctor with the news that the American College of OB/GYNs (or some such) had just released a position paper saying vaginal delivery was preferred even after multiple c-sections. Based on that, he told my wife she would try to deliver vaginally. She asked to be given a shot to stop the contractions so she could deliver on the scheduled date in the planned manner. That was not an option nor was having a c-section. She had to try to deliver vaginally.

My wife didn't want a vaginal delivery. We were both completely unprepared for that ordeal. It had been 4 years since we'd taken natural childbirth classes. She couldn't remember how to breathe and I couldn't remember how to coach. After 12+ hours of labor, our third child was delivered by c-section.

My wife was furious with the doctor. (So was I.) She felt betrayed by him. We never contemplated suing. He had done what he thought best for both child and mother. Had my wife been able to deliver vaginally, she would have avoided major surgery. My wife understood why a trial delivery may have been the best course. What she was upset about was the way the doctor ordered her to try a vaginal delivery. Had he tried to persuade her that was the way to go, everything would have been more palatable.

From the doctor's perspective, I'm sure things looked very different. He was the head of the OB/GYN practice at the hospital. In addition to my wife, he had a couple of other difficult deliveries that were "underway". He was also being asked by other doctors for advice on their difficult deliveries. I'm sure the doctor didn't feel he had the luxury of demonstrating empathy for my wife's concerns.

Fred Drinkwater said...

Zach writes: "A doctor in a medical situation is the expert. He shouldn't set his expertise aside lightly."

An analogy from the aviation world - every pilot know these words by heart:
Federal Aviation Regulations Part 91, General Operating and Flight Rules:
91.3a: The pilot in command (PIC) of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
91.3b: In an in-flight emergency requiring immediate action, the PIC may deviate from any rule of this part to the extent required to meet that emergency.

Every time you get in an airplane in the US, from a Cessna 150 to a Boeing 787, the PIC is ultimately the one you are trusting to get you there alive. A PIC who "sets aside his expertise" will almost certainly lose his or her license.