Open Thread: VBAC and Informed Consent

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Go for it.

Update on Thursday, March 11, 2010 at 5:55PM by Jill

These off-topic comments appeared on the previous post. They are being relocated here:

There are cases specifically about VBAC consent. One of the most egregious is Kathleen DUFFY, Adminstratrix (Estate ofSage T. WARREN), et al. v. Julie S. FLAGG et al. (2004). Duffy acknowledged that she had been counseled extensively prior to the VBAC attempted that ended in a ruptured uterus and neonatal death:

“Flagg advised the plaintiff that, statistically, there were risks associated with the procedure, including uterine rupture and even a small chance of death of the child. Flagg reassured the plaintiff that all necessary steps would be taken to minimize or eliminate the risk to either the plaintiff or the plaintiff’s decedent and that the risk was “very, very small … .” … [T]he plaintiff asked … whether Flagg had had any negative outcomes. In response, Flagg stated that one of her previous patients suffered a uterine rupture as a result of a VBAC delivery. She did not mention, however, that the uterine rupture had caused the infant’s death and had placed the mother’s health at risk.”

When patient lost her original lawsuit against the doctor, she was appealed using a new theory.

“The plaintiff’s informed consent claim rested on the allegation that Flagg had given an incomplete and misleading response to the plaintiff’s inquiry about prior experience with VBAC deliveries. The plaintiff maintained that Flagg told the plaintiff that, in a prior VBAC delivery, she had one complication that resulted in a uterine rupture, but failed to tell the plaintiff that the uterine rupture resulted in an infant’s death. The plaintiff asserted that this evidence supported her claim that Flagg had not provided her with adequate information required for informed consent … The plaintiff also claimed that if Flagg had informed her that the prior VBAC delivery resulted in the death of the infant, she would not have elected the VBAC procedure.”

The Appeals Court agreed with the mother and granted a new trial on the theory that the mother had not given informed consent.

Decisions like these have made it clear that no consent process for VBAC, no matter how detailed is acceptable to patients or the court. Patients can claim that they didn’t “understand” and courts will side with them.

March 11, 2010 | Amy Tuteur, MD

 

I don’t know that the Duffy v. Flagg case is special because it involved a TOL/VBAC. How is this case different from any of the other vaginal deliveries gone bad in which a C-section would have been better in retrospect? VBAC or not, a woman could always claim her doctor didn’t inform her about some potential consequence of vaginal delivery or didn’t recognize the problem and respond quickly enough. Childbirth is unpredictable by nature. The VBAC risk is negligibly different from any vaginal delivery risk. Also, miscarriages of justice happen all the time (hot coffee, Twinkies, gloves that don’t fit, whatever) when people seek to attribute blame for unexpected accidents or for their own mistakes. We can never be fully protected against them, so there is little point in making our society ever more restrictive out of fear.

Furthermore, if a woman signed a document saying that the risk of UR in VBAC is 0.5-1%, and the chance of fetal death is 6% of those ruptures, I don’t see how a jury sides with her that she wasn’t aware of it. It seems quite different from asking your doctor if she/he has ever had a rupture and taking that answer as representative.

March 11, 2010 | KK

Dr. Amy,

Maybe it’s because I’m not a lawyer and just a regular person, but I disagree with the appellate court. What difference would a doctor’s anecdotal evidence make to whether this patient would suffer a UR with fetal death? Would it have made a difference had the doctor said, “Nope, it’s never happened, so you might be the first!”? Would that have been reassuring? (Somehow I doubt it.) As KK said, you can’t protect yourself from every potential threat. Wish we could return to some common sense in law.

March 1, 2010 | Kathy

Comments

[Rachel z]

Yesterday, I posted the comment made by the NIH guy about how informed refusal is a foggy area. I felt like his response was such a cop out - but I suspect they never even discussed or thought to discuss it. He said that informed consent/refusal did not take into account the mother-baby relationship.

There is legal precedent, according to Katie Prown's document "Enforcing and Promoting the Rights of Women Seeking VBAC" at http://ican-online.org/vbac/enforcing-and-promoting-rights-women-seeking-vaginal-birth-after-cesarean-vbac-primer . It cites a few cases, including Meador v. Stahler and Gheridian, stating:

...the jury awarded a $1.5 million settlement to a Massachusetts woman and her husband for undergoing a medically unnecessary cesarean that she had made clear she didn’t want.

The plaintiffs successfully claimed that the woman’s obstetricians misrepresented the risks of alternative procedures, i.e. VBAC; ignored her expressed wishes for this alternative treatment; compelled her passive consent to surgery through emotional coercion; and that the failure to obtain proper consent constituted substandard and negligent medical care resulting in the development of post-traumatic stress disorder. Further, the plaintiff argued, and the jury agreed, that the loss of personal decision making power over her body, her health, and the birth of her child was both physically and emotionally disabling and deprived her husband of “consortium,” i.e. sexual companionship. In addition, her husband argued that his loss of consortium was exacerbated by the physicians’ failure to include him in the decision-making process, leaving him to feel powerless, and as a result nearly one-third of the total damages was awarded to him. While this case doesn’t hold the same legal standing as appellate court rulings, it does establish a useful precedent for other women to refer to in pursing malpractice suits alleging negligence related to failure to obtain proper consent.

Another one she sites is the Angela Carder case:

In Re. A.C., involved Angela Carder, a pregnant cancer patient who refused to consent to a cesarean at 25 weeks gestation and stated that she wanted to undergo cancer treatment instead, which her doctors believed would kill her fetus. Officials at George Washington University Hospital intervened and obtained a court order to force her to undergo a cesarean that neither she nor her baby survived. Her estate appealed the decision and won.

The Court of Appeals upheld the right of pregnant women to make all medical decisions on behalf of themselves and their fetuses, arguing that to compel invasive treatment on pregnant women would give fetuses rights superior to those of the mother and diminish the rights of born children whose parents could not, by law, be forced to undergo surgery or donate organs on their behalf. The court further ruled that the viability of the fetus and any potential harm the mother might cause to it by refusing treatment could not override her fundamental right to bodily integrity and informed consent/refusal.

It’s important for VBAC mothers to know that the Carder ruling has had a very chilling effect on the willingness of doctors or hospitals to use the courts to force women to undergo cesareans. Many continue to use the prospect of a court order as a threat to coerce women to consent, but hospitals, doctors, and their attorneys are well aware that, should they proceed and should the mother decide to appeal, they’re looking at a long and expensive legal battle that they will lose in the end.

Prown adds,

...in the aftermath of the Carder ruling—and more recent appellate rulings, such as In Re. Fetus Brown in which the Illinois Supreme Court upheld the right of a pregnant woman to refuse a blood transfusion—the AMA and ACOG issued ethical guidelines mandating that physicians must respect the autonomy of pregnant patients and declaring that using the courts to compel treatment is rarely, if ever, justified. ACOG’s ethical guidelines regarding patient rights and maternal-fetal conflict state (http://www.acog.org/from_home/publications/ethics/): “Occasionally, a woman’s autonomous decision will seem not to promote beneficence-based obligations to the fetus. In this situation, where there is insufficient time to obtain transfer of care, the obstetrician must respect the patient’s autonomy, continue to care for the pregnant woman, and not intervene against the patient’s wishes, regardless of the consequences.”

There is a third case that comes to mind which I thought she had referenced but couldn't find by skimming, but the case was about two brothers - one suing the other so he could get a life-saving transplant from him. Short version: the court upheld that a person could not be forced to undergo a medical procedure to save the life of another; no person's life is more valuable than another's.

So, I'm no lawyer - perhaps Courtroom Mama or someone else can elaborate further about the validity of these cases in terms of informed consent/refusal - I'm kind of interested in that perspective, actually. And between this and EMTALA, a hospital can't turn a laboring mom away, and can't do anything she says no to.

Now, I realize this is actually about informed refusal, but we really can't have one without the other, right?

Just my .02 - if it's worth even that much...

[Sunny]

Tort reform chaps my ass in a world where NIH panel members say things like gravid women have no right to informed consent.

And I do not agree with linking the VBAC issue to abortion. That comparison is a red herring IMO. The ONLY issue to focus on is that VBAC for a normal-risk mother is *still* less risky to mother and child than repeat cesarean. Emotionally and erroneously pitting a mother's interest against her baby's is not serving either at all.

[Kris]

Amy, KK and Jill

I think that because this is an open discussion format on the issue of VBAC and informed consent that it is completely appropriate to present this issue from the other side. Amy has provided an example of a case in which informed consent was given to the patient. Yes, we can do VBAC, yes, there are risks...and despite this informed consent, there was a lawsuit. It is terrible that this individual suffered fetal loss...horrible....but the doctor provided the patient with information about the risks involved, was willing to perform the VBAC and then suffered the consequence of not only fetal loss in their patient but also a lawsuit.

I would venture to guess that this physician no longer does VBAC deliveries because they are unwilling to assume the small (but higher) risk of maternal/fetal death when despite informed consent, a lawsuit was the outcome.

And regarding the Angela Carder case...this was a terrible miscarriage of medicine that occurred in the 1980's...

I recently survived a pregnancy with cancer and underwent 6 rounds of chemotherapy during the pregnancy. I was informed of all of the risks...and had to have a c-section because of complications from the chemotherapy drugs. There were complications post c-section for me and the baby spent 5 long weeks (for me) in the NICU. Though several options were presented to me, I was permitted to make the treatment choices. I also chose to listen to my health care providers and not insist on options that were unrealistic or carried even greater risks.

These issues are all very layered.

[Jill]

Kris,

You misread. Those comments were relocated from a different post where they were off-topic. That is why I relocated them to an open thread called "Open Thread: VBAC and Informed Consent."

[NavelgazingMidwife]

How informed *is* informed consent? Who gets to decide the informing phase has ended and the deciding phase has begun? Who picks the studies/statistics/anecdotal/experiential information imparted? What if English is the second language or the patient has a 10th grade education or the doctor speaks as if he's talking to a medical student? Who is the moderator that translates or calls a time out for clarifications?

I live these questions -as a provider and as a pro-VBAC woman. The two hats I wear often look the same, but, as with OBs, there can be vast differences based on The Law and how it affects each "side." When variations of the norm, or complications, arise in a pregnancy, it's imperative of me to help the woman become informed about her situation so that, to the best of her knowledge, she can make an autonomous decision. There is rarely a decision that I haven't had my hand or say in, despite the noble desire to remain neutral. I *am* hired for my knowledge and expertise, the same as an OB, so to not offer thoughts would defeat the purpose of hiring a consultant. If the woman doesn't *want* my thoughts, she's probably UCing and doesn't give a whit what I think anyway.

Watching the NIH VBAC Conference, I was struck by how often doctors made the decision to incise an abdomen based *soley* on legalities or insurance worries... that they gambled the life of a woman in order to serve themselves, trying to keep themselves (legally) safe and sound. To hell with the woman and her life; the OBs' okay, so all's right with the world. It was in listening to these stories, over and over, that I had to think, "Do I do that?" And I have made decisions that would keep me out of legal hot water - transporting a butting surprise breech, for example. Granted, I don't have any experience delivering a breech beyond what I learned as a midwifery student and apprentice, but did I offer the mom informed consent as the whole thing went down? Did I say, "I have never done this before and almost any midwife who gets sued in the United States is sued for a dead breech baby, but would you like me to try my hand at your baby right now?" I did not. Equal in the decision was my inexperience and that line of midwives who've lost their licenses for dead breech babies.

So, sitting and watching the people flicker on my computer those 2.5 days, I developed an, "I';; be *damned* if I act like that arrogant (s)OB. I'll be *damned* if I ever let the law sit on my shoulder again, let the law dictate whether a mother has her belly sliced open or not. If I have a mom (I said to myself) who sits in front of me and says, "I know my baby and I can die; I want a VBAC anyway," I will be her champion and help her to the best of my ability. I felt all Power-Full, like I, the mighty midwife, can stand outside hospitals around San Diego, catcher's mitt in hand and say, "Hear, ye VBAC-wanters! Come labor in the parking lot and let's show them!"

Until I think about the Informed Consent crap again. My shoulders slump and I groan an exasperated sigh. How can I possibly get informed consent regarding her understanding that she might have a baby die? Women can know what it's like to not take a test or have an ultrasound, but how do you *really* get women to understand that a baby can DIE. DIE. Gone forever. Is "The Cause" really that important? Is the issue *really* bodily integrity and who gets to lay a hand on whom and what for? If the woman *really* said she wanted to die before she had another cesarean, what if she's in a car accident and unconscious and they take her to the OR and take her baby out? Is she going to be pissed as hell? Or will she be happy they (perhaps) saved the baby?

With every question, there are four more after it. What kind of lawsuits are we building with these very discussions? Why does it have to come down to lawsuits? I *hate* that we will have to have wrongful cesarean suits to get anything done on this issue. I *hate* to think of the screaming, howling, end-laboring women that will have masks smothering their faces and gloating, greedy doctors wielding sharp and steely knives above their swollen bellies, carving babies out of their flesh. I *hate* what that baby will be experiencing, feeling, how s/he will feel growing up knowing s/he was the center of a controversy that said, "My mom didn't want a cesarean so much she didn't care if I died or not."

How do I "inform" a mom of the lifetime of repercussions that come from her scrawling signature on a piece of paper? How do I know, if she says she's informed, how do I know she's taken the scary road to the illogical ending and *still* wants to go down it?

How, how, how, how, how, how, how, how?

And, why oh why oh why oh why.

[Shannon Mitchell]

At some point, I think "do you really KNOW your baby could die" is a moot question. We all knew it the day we got pregnant. Most women have miscarriages. Many women willingly abort. Yes, they know, deep down inside, because it's their worst fear. Trying to state that women don't know that reality is just...unfathomable...in my world. Not willing to accept, maybe, ignorant..never. Not unless they are mentally impaired.

So what I tell people is this: VBAC moms aren't different nor special. They don't have especial risks even if some risks seem slightly higher clinically. The difference for VBAC moms is that they KNOW the risks and are reminded of the risks in a way that most moms don't EVER have brought to their attention so when those risks turn into reality,

[Bonnie]

So what is informed consent. When I signed the papers for the c/section...no one told me that 20 years later I would be doing constant battle with yeast in the scar. Adhesions were mentioned, but no one told me that with age, adhesions can become more serious causing bowel obstructions and resulting in sepsis...which is often fatal. Is our medical system prepared to deal with the numbers of women who now have abdominal adhesions (thanks to protecting the malpractice insurance of the OBS).

Based on the conference earlier this week...I would have failed the Screening Predictor for VBAC success...on many points...I would have been seriously cautioned for a repeat c/section, perhaps even having doctors who would refused to care for me.
If I don't have the right to refuse their recommendation of a repeat c/section...I'm sectioned again. Only thing is...I've had two vbacs.

The Emporers are wearing no clothes. And the more women figure out that they aren't birthing with an OB, but with an entire Obstetric dynasty that only prioritizes its interests as it sees fit (through a wide angle lens of medical legal financial and litigation issues) they will take their consumption of maternity care elsewhere. And the CDC says it is already happening.

[emjaybee]

NM: the short answer is..yes. If a woman (and how many women as a percentage, truly, are we talking about, who want to take extreme risks in birth?) wants to take the extreme risk, she has a right to. However misguided. And she may end up grieving a dead baby, or be dead herself. But that will be her risk to have taken. You have to treat her like an adult capable of this decision.

I mean, put it in a different context; what if she doesn't want her cancer treated, when you know she could survive? Or has to decide whether to let her spouse get taken off life support when you think he could make it? We trust her to be competent to make that decision, because we have to. This is no different.

Now, in the breech case you cited, it wasn't just about the lawsuits, it was about *your inexperience* no? You did not feel confident you could deliver that baby breech. I do think a midwife or OB has a right to say "I need assistance with this" as well, as hard as that may be. Breech does have increased risk, although better training of OBs and midwives could certainly reduce that risk and the c/section rate as well. But you personally were caught in a judgement call, and you made the best one you could.

[Kris]

I agree with much of what has been said. I also think that a trial of labor is fair in most situations post-c-section. The only point that I'm trying to make is that because litigation is a real risk, that many doctors are simply deciding against offering VBAC. As a patient, we are free to choose to exercise our choice and find someone else.

It is a shame, because both physicians AND patients feel victimized. That is KEY in this issue. Both parties feel victimized.

A close friend of mine is a family practitioner. During her residency, she attended a birth where the baby died as a result of a uterine rupture during a VBAC. She was absolutely devastated by this as was the patient and the patient's family. There was a lawsuit...but beyond that was the horrible grief experienced by the mothertas well as my good friend. From that point forward, she determined to never practice OB again...ever...and she hasn't.

Something worth thinking about is that we know that the risks are low..and yet...if a physician or midwife experiences this particular horrific thing in their practice...well...it seems more common than the statistics would imply. Doctors and mid-wives are humans and they are also incredibly moved by these losses and experiences.

I'm sure to you, for example, the idea of developing cancer during pregnancy seems like ... well...so rare it would never happen. Having experienced it myself, and being a volunteer for an organization that provides care to women undergoing this issue, I suddenly feel that every pregnancy carries this risk. Of course, it does not....but I am affected by this experience.

Physicians are motivated in part by their fear of litigation too...which can not only ruin their careers, but can have devastating financial impacts. The risks imposed by most c-sections are also fairly low, but again...as a woman who has successfully delivered by VBAC and experienced a rupture with VBAC I still preferred my VBAC to recovery from a c-section.

All I'm trying to say is that these issues are very layered. It is not the evil establishment of medicine against women...in most cases...at least most cases that I know of...though my experience is anecdotal at best.

What I'm asking for is that you consider that there are many reasons that VBAC is done this way now and that perhaps instead of vilifying physicians, we look more at the root cause...and try to address that.

As to the comment about risks of c-section years later, like yeast infections....risks of vaginal birth include urinary incontinence (please, PLEASE don't make me laugh) as well as other unmentionables.

We look to medicine as a perfect science...a cure-all.... Many years ago, women and children regularly died during childbirth. Things have improved but maybe the pendulum has swung too far to the other side. Do we also need to look at ourselves and our role in that? How can we make trials of labor post-section the norm without alienating the medical profession? What factors influence physician choice to reject VBAC (besides our own personal bias as to what those reasons might be?).

Again...I feel this issue is quite layered...but I commend this website for bringing the issue of VBAC to the forefront. I remember how absolutely desperate I felt to experience childbirth after my initial c-section and how hard I searched to find a nurse midwife willing to accommodate my wishes. Had I not experienced rupture, I might wholeheartedly embrace VBAC without question.

[SaanenMother]

I have chosen to read only for most of the discussions hoping to learn more talk less if you know what I mean.
Kris your words crystallize things more for me than all the pontificating and punditing I have been voraciously reading for days- I only hope people will read your words and understand that lofty ideals on choice, informed consent, .8- 1% risk, tort malpractice reform have heart and flesh you are not a variable or percentage point- I am so grateful to hear your story.