33 hours ago · Lisa received an email from her USF doctor Wednesday threatening to have police bring her to the hospital for a caesarean. SPRING HILL — Lisa Epsteen thought she … >> Go To The Portal
The most troubling aspect of leaving the adjudication of obstetric violence to the civil justice system is that it treats the matter as either a medical error or an interpersonal conflict similar to a fistfight on a street corner.§ The problem is significantly more complicated. One aspect is the perceived liability risk for harm to a foetus. This perception of risk, while usually significantly overestimated, leads practitioners to pressure or coerce women out of fear of malpractice liability, 18 and institutions to implement policies that restrict women’s choices about delivery. 21 This, when combined with the low value ascribed to injury or failure of informed consent for the pregnant woman, results in perverse incentives. These are evident in the fact that the threats against Goodall were authored by the hospital’s chief financial officer, and Dray’s forced surgery was approved by the hospital’s risk management counsel. But the perverse incentives are not the entire picture – obstetric violence is more than the aggregation of individual cost-benefit analyses. Rather, the lack of monetary value ascribed to birthing women’s dignity is a symptom of pernicious beliefs about women’s autonomy that have an independent, direct effect on interactions between providers and patients.
In recent years, there has been growing public attention to a problem many US health institutions and providers disclaim: bullying and coercion of pregnant women during birth by health care personnel , known as obstetric violence. Through a series of real case studies, this article provides a legal practitioner’s perspective on a systemic problem of institutionalized gender-based violence with only individual tort litigation as an avenue for redress, and even that largely out of reach for women. It provides an overview of the limitations of the civil justice system in addressing obstetric violence, and compares alternatives from Latin American jurisdictions. Finally, the article posits policy solutions for the legal system and health care systems.
Oberman 22 theorizes that the overmastering of a birthing woman’s will is a breach of a fiduciary duty, (given the imbalance of information and power between the physician and the patient) driven by “divided loyalties” when physicians rationalize the foetus as a “second patient”. This is certainly so, but a survey conducted by Samuels et al 23 also points to underlying beliefs about women’s reproductive autonomy as a significant factor in perpetration of obstetric violence. Samuels et al surveyed physicians and health attorneys and found that the personal value they ascribe to the foetus (i.e. anti-abortion or conservative attitudes) correlated strongly with their willingness to seek a court-ordered caesarean surgery over the protest of an unwilling patient. The authors concluded that this tension leaves women caught “in proxy wars between those who place a premium on maternal autonomy rights and those who believe that foetal interests are more compelling.” In this light, use of legal process to compel compliance is revealed as a violent policing of gender norms.
12 Mitchell had recently left the obstetrical practice where she had been a patient because of pressure to have an induction of labour due to a suspected large baby. Although an induction or caesarean had been recommended, she was never told that a vaginal birth was not an option. Wishing to have an unmedicated vaginal delivery, Mitchell took childbirth classes, joined groups advocating natural birth, and hired a doula who is a certified professional midwife.
The primary tool at the disposal of the US patient for creating change in the health care setting is tort litigation. With respect to obstetric violence, this tool can be sharpened through legislative changes, including lengthening of statutes of limitations, delineating causes of action, and assigning punitive damages.
It is critical to recognize that implementation of these laws has been beset by challenges, and women face significant barriers to justice because of lax enforcement, lack of rights-based training among health care providers, and failure to address infrastructural weaknesses. 40, 41 For instance, Herrera 42 demonstrates that, in Argentina, despite the passage of a 2004 statute guaranteeing the rights of birthing women and a 2009 statute prohibiting obstetric violence, courts adjudicating tort suits continue to rely on a malpractice analysis rather than the norms of humanized childbirth and freedom from violence. In Mexico, Grupo de Información en Reproducción Elegida (GIRE) 43 has observed that authorities are reticent to criminally charge physicians, so there has never been a successful prosecution for obstetric violence. Moreover, the group points out that administrative complaints and medical arbitration focus on the acts of individual medical personnel, but not institutions as a whole.
That said, 83% of women in the same survey reported positive regard (either “good” or “excellent”) for the US maternity care system.