#138 | Legal Case Study #1 with Attorney Hermine Hayes-Klein: Traumatized at a Major Teaching Hospital While Interns Watched and Learned

December 8, 2021

Today on the show we have attorney Hermine Hayes-Klein, a fearless legal advocate for sexual and reproductive rights with a particular passion for defending women’s human rights in childbirth, which, she says, are routinely violated in maternity care systems. We’re also grateful to have her her clients, Lillie and George, whose birth experience we will be focusing on today.

By the end of this episode you’ll have clarity as what obstetric abuse looks like, who is committing it and why it’s self-perpetuating.  Plus, a better understanding of your legal and human rights, and how the two still need to better align in today’s maternity - and, primarily obstetric - model of care systems.

There are two things we would like you to know before listening:
1. Hermine drops one quick f-bomb between the 7-8 minute mark, and
2. We made the choice to bleep-out the hospital name. It was a last-minute decision, and we made it for the following reasons:
(a) we didn’t want to complicate any current legal matters between the client and hospital, and
(b) we don’t want the listener to think stories like these can’t and don’t happen all over, because, unfortunately, they do.

If you follow us on Instagram, you’re welcome to reach out and ask.

This episode is the first among a new series of “legal case studies” with Hermine Hayes-Klein.

* * * * * * * * * *

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View Episode Transcript

It was terrifying. Not only was it terrifying, we were asking questions, we were trying to figure out what was happening. Why are you acting this way? Why are you guys screaming? And nobody had an answer. They're trying to push me out of the way to hold her down better told George at one point to get out of the room if he wasn't going to assist in restraining me. It felt like everything that they were doing was specifically targeted to make us feel like we had absolutely no power.

What happened to Lily was wrong on many levels, right. It was a violation of her human rights fundamentally have autonomy that we do not give up when we go in for medical treatment in the hospital. And so our human right of physical autonomy is enshrined in every state and in every country as the law of informed consent refusal. And the law of informed consent refusal is also a bioethical obligation on all providers that they have an obligation to fulfill.

I'm Cynthia Overgard, owner of HypnoBirthing of Connecticut, childbirth advocate and postpartum support specialist. And I'm Trisha Ludwig, certified nurse midwife and international board certified lactation consultant. And this is the Down To Birth Podcast. Childbirth is something we're made to do. But how do we have our safest and most satisfying experience in today's medical culture? Let's dispel the myths and get down to birth.

Today on the show we have with US Attorney Hermine Hayes-Klein, a fearless legal advocate for sexual and reproductive rights with a particular passion for defending women's human rights in childbirth, which she says are routinely violated in maternity care systems. We're also grateful to have Lillian George whose birth we'll be focusing on today. By the end of this episode, you'll have clarity as to what obstetric abuse looks like, who's committing it and why it's self perpetuating. Plus a better understanding of your legal and human rights and how the two still need to better align in today's maternity, and primarily obstetric model of care systems. Our recording time was quite a bit longer than this episode. So we'll be starting mid conversation, where her mean summarizes her clients birth experience, what I summarize the story it's was planning that out of hospital birth was having a normal healthy pregnancy, went into labor before 37 weeks and so was whisked out of home birth and transferred to Yale couple didn't have a problem with that. They were dancing as they pack their back for the hospital. They were so excited to welcome their child. They presented at the hospital normal labor showed the birth plan that they had been reassured all through pregnancy, you know, could be respected even at Yale, when they showed the birth plan. They were told that women are so often told with the birth plan, which is this is what we do anyway, why are you being so annoying anyone pointing to these things? This is this is what we of course, we don't cut the cord before it stops pulsing. That's our default practice. And then labor goes along, you know, many little ways in which the plan for a physiological birth was chipped away at and there was all these different signs that there was no meaningful support in that LMD unit for physiological breast support. Despite the talk about this is the way we do it around here. But the climax of the trauma that happened to Lily and George was when Lily was starting to slowly push her baby down on her back hands and knees. There was a nurse holding a monitor to her belly while she was on her hands and knees saying oh, this monitor is kind of broken. I have to hold it here. And at one point she she's holding the broken monitor on the belly. She leaves the room to get the providers because it's almost time for the baby to come out. And then suddenly all these people run to the room Yale's a teaching hospital multiple doctors, multiple students, the room is crowded with people. Nobody says anything to Lillian George they shall get her on her back. And they forcibly flip Lily from her hands and knees onto her back without her permission without talking to her without an explanation. Is there an emergency what is going on here? Nothing. She's being treated like an object. She tries to raise herself onto her elbows. So she can see what's going on because they're starting to touch you know the lower part of her body and do things to her. And as she would raise herself onto her elbows, the nurses would knock her arms out from under her so that she would fall back onto her back flat on her back. And when she continued to try to raise herself onto her elbows to see what was going on and what all this behavior was about. The nurses lowered the top half of the bed so that her top half of her body was so far down that George below her waist couldn't see her head anymore. It was she and there was no way that she could lift herself. You know sort of There's an engineering aerodynamically or whatever, there's no way that she could lift yourself anymore. And then once she was completely immobilized and rendered helpless, through the manipulation of the bed, they proceeded to shove their hands up inside her and pull the baby out in a way that she experienced and George witnessed like a gang rape. And when the baby came out, the doctor turned to George and said, Hey, dad want to cut the cord. And George said, but but we talked about it was the same doctor that made all these representations during the labor, this is the way we do it anyway. And he said, But we talked about wait until the court stops pulsing. And the doctor said, it's not about you anymore, and goes ahead and cuts the cord himself. And then they took the baby away for a long, long time, many, many hours. How long you guys? Three, two days? Yeah, they took the baby away for two days. And so and then they got their baby out and were sent home to try to heal their trauma. That's, that's their experience of giving birth. Yeah. I mean, and maybe they were condemned, condemning both George and I for not being a static for, you know, the birth of our child, when we both knew and were educated enough to know what had just happened to us. All of our rights were completely ignored and completely violated. And we were all treated. We were treated like crazy people also, because we were planning a home birth.

They asked me if I'm, if I was happy. And I said, No, I'm not happy. Yeah, that what else could I say?

And George went, do you mean, at the, at the time of the birth? Remind me or do you mean at our meeting with you? When did they ask you if you're happy? Oh, it was right there after the birth. Right? Like, yeah. Yeah, yeah, I think you're gonna get that that prize in the end. And that it's gonna erase everything.

And it justifies their actions that are obviously based on time and money and not on the well being of, you know, the patient. And honestly, it's not so much just about physical harm, which we definitely experienced. I had a lot of physical trauma, but it talks about mental trauma, I've been diagnosed PTSD from this I've gone through, I mean, 1000s of hours of EMDR work in therapy. And it's, you know, Yale has completely, uh, basically shoved it to the side.

We wrote a letter saying, We're concerned that what happened to Lilly was not just a one off with a rogue provider that ignored informed consent, but was a reflection of an instance of institutional confusion regarding the agency of the patient and l&d and what you're allowed to do, you know, to the, to that patient. And at the end of the day, yeah, what they said to us is, this is the way they're doing it everywhere. And so this is the way we're gonna do it. And by just in a way, yeah, and by this is the way we're doing it, you mean, we do whatever we we, in the moment, we do not respect informed consent, and nobody else does either. Nobody respects informed consent, just like you're saying, Cynthia, like, and the way that I put it with the culture and law issue is that there's a very wide gap between the law of informed consent and the culture of obstetrics, the law of informed consent is very clear, what they're supposed to do is very clear, but the culture of obstetrics truly believes that this is irrelevant there. And they can do whatever they want to you and what that representative from Yale was ultimately saying to me what he's really fucking saying there is, you ladies have let us get away with this for this long. Why should we stop now.

So it's easy to maybe provide some degree of informed consent when we're talking about non emergency situations where everything is going well, and we you know, talk about an IV and you might decline an IV and they might provide you with the risks of an IV or the risks of declining but lily in a situation like yours when your baby was obviously under distress, and no, no, you would think that from the way they were acting, they became out without guards of seven and nine.

Did they take the baby away for no reason at all?

They said he was grunting. They said he was grunting when he came out and they wanted observation. Yes. For grunting that was the excuse. Am I right? You guys correct me. That is 100% true. Yeah. And George tried all that time to get more information. He could see that the baby needed his mama. He was a perfectly George talk to us. You were the one saw baby in the NICU baby was okay. He needed mama.

I told them that he was fine. He wasn't in the NICU. He was in like the the watching area.

Yeah, he was pissed. He was pissed. He was upset. He wanted his mom. He was obviously in distress because these people were holding them captive. They wanted to take them away. I said no, you don't need that. He just needs his mother. No, no, we need to do this. I kept saying no. Then they took them away. And I had to like basically ask for permission to touch him or to take off my shirt so he could lay on my chest. They were just poking and prodding and waiting for other people to Get their turn to make sure that, you know, they put the tubes in, you know, this guy has to come in from the other side of town to put in tubes on his throat or whatever. It's like, oh, no, it's his, you know, it was just it was insanity.

It wasn't our child. And, you know, we weren't we actually were only permitted to be with our baby together for the first 15 minutes yet I was able to go to the NICU and see him. Otherwise, we had to spend three days taking turns and rotating off from the NICU to the hospital room. So I would lay George would go for a while he come back and I'd go for a while and we go back and forth. And, you know, nobody really had a clear answer as to why they were doing what they were doing. Yes, the baby was premature, but the baby came out with fabulous, well, not seven nine is pretty good as far as Apgar. Like good enough. They gave us like 10 seconds of skin to skin, the baby was gone. And I told George to go with the baby and I was left alone. I was just left alone with nobody there.

I think we can talk this is the point you raised Trisha is important about what is informed consent and a non emergent situation? What is it in an emergent situation, it doesn't still apply? Because it's definitely still the story of obstetrics that it doesn't apply in childbirth, because once labor started, things are happening too fast. But we all know That's complete nonsense, you know, as like, look, when are things happening too fast for informed consent, when she's passed out, when she's had a heart attack and fallen on your hospital floor, go ahead and act in the law allows you to do it. If she is conscious, and she is not judged and competent by a judge. There's only two exceptions to informed consent. And again, like I had this conversation with Yale, right? The guy says, and I've thought about how to tell what they said, and I'm not going to name names about who said what, because on the call with with us and says about the moment with the court, you understand what her mean, saying about the law of informed consent, but what you need to understand is that informed consent looks different in game time, which by the way, we're talking about women's health, I'm annoyed began time. And I'm like, Oh, well, doctor, that's what's so great about having general counsel here, because now he can clarify for you that the only game time in which informed consent looks different is if the client is unconscious or incompetent. And incompetent means a judged incompetent, like mental retardation. It doesn't mean it female or in labor. And they're like, Yeah, that's true. That's the law. But they refuse Cynthia culture, to say anything to close that gap between what he had just said and what they're actually doing the people like Lilly. So like, I mean, so just her story, like there was plenty of time in that room for them to talk to them and to ask them, the reason they don't ask is they're afraid the patient will say, No, that's why they don't ask in the emergency. They're like, Oh, my God, things are happening fast. And what if it slows down because of the patient's mouth, I don't even know if I don't even know if they're afraid to hear now, I think that egos get involved, and they're like, I'll be damned. If I'm asking you how to do my job. That's where you really have to get that's where you really have to be afraid of working with any other human being when their ego gets involved. That's it all bets are off now. And that's unfortunately, what we see happening some of the time is, so I've things one, I want to ask you, does a couple have the right to grab their baby and leave? Of course, normally, they're scared out of doing that. Because if there's the slightest thing could be wrong, they really you can manipulate them into not doing it. But legally can they say well, not consent, give us her baby we're out of here.

So it's really interesting to think about your ability to walk out of the hospital before the baby exits your body and after the baby exits your body, right, like that is so interesting, clearly before the baby exits your body, you can get up and walk out. And that's why it's that's why I fight for home birth midwives. Because the question is, where do you turn when you walk out that door, and they treat you different in the hospital, if they know you have somewhere else to turn, then if they know that you don't, and so you can walk out then once the baby leaves your body, as we've seen in the story, like the state considers itself to be invested and have an ownership stake in that citizen in a whole new way. And so what that's going to translate into is the risk that those providers are going to call DHS on you. So yes, you can but you might then have a fight with DHS about whether it was medically negligent for you to disobey those medical authorities that were ordering you to do this or that with your baby and so for that, you know and so then we get into the whole issue of like how empowered Are you who's at your back and the and the way in which they're they're able to both the state and those providers are able to unleash that kind of threat and punishment on people of color with so much more power and they do you know, they make that threat to anybody but they'll call DHS like this on people of color because they're their that their phones already greased to be clear, Lily and George are both white right? In case there's any they weren't all threatened with DHS. Right, right. Like that's, yeah, video data thing is one thing that's that's always instilled fear in me on behalf of others. There was that case of a woman who wanted a VBAC. And they did get a court order made labor, which I just can't believe they were just hell bent on refusing her denying her that VBAC. Are you familiar with that case of the I think the story that you describe has happened in a bunch of different states. So the one that comes to my mind is really not Dre, but and re not drays case what happened was, you know, she had an unnecessary and for the first a bait and switch zerion for the second, you know, where they promised her a VBAC. And there was no support for that when she got in there. Then she really sought out Staten Island because they promised to be back after two that was the only hospital that would do it found the doctor that said he would do it, that doctor wasn't on call very often and abuse stories. That's what happens that the nice provider that promised not to abuse you isn't there. Yeah, and so the abusive providers are there. So their abusive providers come in or like, you know, you've already had to Syrians want to just have another. She's like, I really thought about this, and I've really done a lot of work around this. I don't want to have another zerion I'd like to have a trial labor. They're like, Yeah, your baby's gonna die. You know, you're rupturing uterus and stuff. And she's like, Yeah, you know, I really thought about the risks. And they tried to bully bully bully her. You don't care if your baby's gonna die, lots of abuse. She said and strong. Finally, they called upstairs to the hospital attorney and said, we've got this woman here refusing a cesarean Can I force her? And that guy said, yes, go for it. So that is so important, because what that shows us is that that hospital attorney whose only job is to think about liability risks of that hospital, perceive the liability risk of holding a woman down and cutting her open at zero. He's and and to date has been proven right? It took her almost two years to find a lawyer. And that is itself an incredible story of what she went through to find a lawyer willing to take that case. And they charged her non consent. Well, it was still that the lawyer and the first judge at the trial court in New York, said that, you know, if the if the doctor thinks your baby is in danger, he can hold you down if you're open. And now it's on appeal. And her very incredibly brave and heroic lawyer Michael bast has been fighting this case for seven years now. So in Lily's case, there's this encounter at the hospital that has sort of one sets of emotional meaning in the moment, largely shock. And then with time, the shock translates into trauma and PTSD. But I think Lily could better describe the sort of emotion the arc of the emotional journey that she and George have been on since since those doctors ran into the room while she was trying to give birth to her. Yeah, sure, definitely. So without getting into a long, arduous story, I can say that from the second George and I entered the hospital, we both felt incredibly degraded. And it felt like everything that they were doing was specifically targeted to make us feel like we had absolutely no power from the very beginning when we get checked in and they wouldn't let George up with me for three hours. And I was laboring on my own while also trying to convince them to let my husband be with me, too, when you know, you have one nurse saying Don't worry, you can. You can birth any way you want. We support natural birth, but constantly being pushed to go on Pitocin even though my entire labor went from 5am to 1130. No reason for me to be on Pitocin. Nobody likes the fact that I had any opinion about this whatsoever. And the more that I told them that I was educated in the more that I had an opinion, the more it felt like they put me in a situation where they weren't going to listen to me at all. Also, it was noted that I was on Prozac. And that made me you know, now I'm a crazy person to who can't take care of her child to begin with. So the entire time was very degrading in general. And then when we got to the actual part of the delivery, where everything kind of came to a head, I could not feel more like a piece of meat. I could not feel more dissociated from my body and not understanding what was going on. And I I could not I was panicking more for George and I was for me because I could see in his eyes when I could view him how distraught he was and how he felt powerless. He couldn't protect me. He couldn't protect the baby. And he was being blocked out by a group of strangers who had no consideration for us and our mental or physical well being. Not to mention how they forced they forced my cervix open. The baby didn't get to rotate when he finally came out. So I had extensive tearing, I mean, it's just it's very, uh, it's very traumatizing and that, you know, that led to me being diagnosed with PTSD and glad that I sought treatment. I'm glad I was able to get that done. I will be honest with you the first year of motherhood, I, I felt like my child wasn't real, I could not connect with that child. I was very disassociated from the entire process. And when we approached the hospital, we, we were asking for them to acknowledge this, not only for us and for future women, but also because you know what, dealing with severe diagnosis in mental health costs money. And the amount of financial burden that we've taken on just trying to be responsible and dealing with the outcomes of what happened out of our control at an institution you're supposed to be able to trust is it's, I mean, it's heavy, it is very heavy. And we're obviously willing to pay it. Because we want to be the best parents we can be. And our child shouldn't have inherited trauma in his future. But they didn't care. They didn't care.

When you were going through that experience of people rushing in the room and your baby being kind of yanked out of you, was anything explained to you. Did you have any understanding of why they were doing? They were doing?

No, it was it? It was basically, you know, I was an object, not a human, I did not have a brain. Because, you know, they told us that the fetal heart rate monitor wasn't really working. And they couldn't get a accurate fetal. fetal heart rate. Nobody, nobody said anything to us. Nobody. There was no, okay. Your baby appears to be in distress, okay, there's a problem with the heart rate. Okay, this is what's going to happen. We were simply objects, watching from afar. I had no control over my body. I had no option. I had no idea what was happening. Neither did George. And you know, I guess. I guess that's the way they wanted it. Because we are so off guard that we couldn't really fight for ourselves.

Did you feel treated differently from the moment you came in the hospital, having been a mother who was planning a home birth, and then ended up in the hospital because of preterm 100%? Everybody who talked to me, you know, you could tell that they were, I felt like I was in high school. And I was the kid who was like, fat and smelly and didn't have the cool clothes. Right away, super judged. You could tell the attitude when they were talking to me, you could tell the attitude when they suggested interventions that I said, Come on, that's not really necessary. And even when I reassured them, and I said, Listen, I know you probably have assumptions about home birth mothers, but we're fine being here. We understand we believe in modern medicine, we want our baby to be fine. My baby's coming early. We're totally compliant. But it didn't it didn't matter. Yes, we are definitely judged the entire time and felt we felt we were looked down upon as lesser people, less educated people.

George, what was that like for you? What did you see happening in that same scene?

It was terrifying. Not only was it terrifying, we were asking questions. We were trying to figure out what was happening. Why are you acting this way? Why are you guys screaming? They were very loud, abrupt, angry, moving hastily. And we're saying we were in the way, what is going on here? You know, I'm asking questions. I'm not scared. My wife is delivering. She's a strong woman I trust in her. But she's screaming, Get off of me. Why are you holding me this way? What's going on? And nobody had an answer. They just not only didn't they care, they were just like, You're in the way. Get out of the way. They're trying to push me out of the way to hold her down better hold her arms away.

They told Georgia one point to get out of the room if he wasn't going to assist in restraining me what I mean, that's why were they restraining you why they were restraining me because I wanted to birth on all fours because that's what felt right. They told me that I had to lay on my back to get a vaginal exam. And I said, Okay, fine. So I lay on my back. At that point, they manually dilated me without any knowledge. And I said, Well, I can't I go back to the way it was laboring. They said, No, you have to be on your back. And in my head, I'm thinking, Okay, I know that's not true. But I also know that there must be something wrong and I don't want to fight the system here. But I also knew from my class with HypnoBirthing, that if put into the position on your back, it's best to put yourself at a 45 degree angle. So I'm thinking okay, fine, at least I can do that. So I keep on pushing myself up on my elbows to put myself in that angle. And they did not like that. And nurses were grabbing my arms and pulling them out from under me and trying to hold me back and I kept on trying to explain to them, I need to be at a 45 degree angle, this does not feel right. And to shut me up, that's when they then lowered the bed. And during our conversation with Yale, they actually said that their beds don't physically do that. So I must be crazy and making this up in my head, when it's a known fact that almost all hospital beds, absolutely incline. I must. I'm just I'm astonished that they told George to restrain you. And, and they manually dilate. How do they manually die?

Um, my I was, I believe nine centimeters, and the doctor said she was going to check me out. And then I started screaming because I felt excruciating pain. I said, What are you doing? And she told me, she was manually dilating me, she took her hands, and she stretched my cervix the rest of the way.

And then after stretching her cervix open, the doctor stood up and ordered another doctor to hold Lily's legs shut, to give the doctor time to gown up and get ready to pull her baby out of her. Why did they need to restrain you. I mean, I think this gets to the shock and confusion that people have in the moment when they're being treated like this, because the mind cannot cognitively grasp that there's no good reason for this, that there's no good reason that she did there was they did not need to restrain her. They wanted her to be immobilized in order to deliver her baby a certain way. And I think it's important to remember that this is a teaching hospital. And there were a lot of students in this room observing, there was a lead doctor, there was another doctor. And, you know, from what we can tell this was some sort of teaching moment for some sort of really crappy mode of deliberation.

I mean, there was a large group of people I know, the NIC U team was there with some students, I'm pretty sure, I was definitely more of a spectacle than a person.

And I assume you were never asked at any point if any of those people could be in the room. So honestly, I don't really remember I totally respect teaching hospitals, I totally respect the idea of you know, learning firsthand, but there is a way to do it respectfully. And there's a way to take advantage of somebody. So whether I consented to that earlier on when you get admitted in there, I really don't know. But we were definitely not asked.

If you had consented. By signing that form. I just want everyone to know you have every right to change your mind and say I don't want any unnecessary staff in the room. And as generous it is as generous as it is of you to say you respect that they need to get their education. I wish they were getting that education in med school where it belongs because they get their degree without seeing one single natural birth without taking one single breastfeeding class. So they're trying to get their education and now all they're watching is this malpractice in action so that they can continue to abuse people and say, This is what we can do. This is how to do it. They have this illusion that they're the ones delivering the baby. So what can what are your legal rights this sounds like assault what was going on in that room her mean?

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So what was going on in that room is called by different names by different sort of global organizations right. One thing that it's called is disrespect and abuse. Another name for it is the mistreatment of birthing women. The World Health Organization gave it that name in a study at some years back. And then another name that's given to it is obstetric violence. And that's a name that was given to this kind of phenomenon by Latin American activists describing what giving birth and met in many Mexico Venezuela, Argentina, Brazil, looks like. Where they have C section rates of 80 to 100% in many hospitals What happened to Lily was wrong on many levels, right? It was a violation of her human right fundamentally of autonomy, that we do not give up. When we go in for medical treatment in the hospital, we go into the hospital to receive medical services. But in doing so we don't turn over our body, we don't lose our rights to control the body and to be to make the decisions about it with the support of our providers. And so our human right of physical autonomy is enshrined in every state and in every country as the law of informed consent refusal. And the law of informed consent refusal is also a bioethical obligation on all providers that they have an obligation to fulfill. And what it requires of them is that before they can do any medical touching, or medical intervention, or perform any service on a patient or potential patient, there has to be communication, it has to happen and that communication. This is what the, you know, obstetrics don't doesn't seem to understand when confronted with stories like Lilly, it doesn't just mean, I'm going to tell you what I'm about to do to you now sign here. That is not what informed consent requires at all. What it requires is informing and asking, right, the person who's making the decision is not the provider who informs the patient what they're going to do to them, but the patient on the basis of information, advice and support from the provider. So what is supposed to happen, and maybe does in some areas of medicine, but doesn't very often in l&d is that the provider looks the patient in the eyes and explains what they perceive the patient's clinical condition to be right. And so that can happen prenatally. Listen, you've had two slightly elevated blood pressures. This is a diagnosis of mild gestational hypertension. So I could offer you induction at 37 weeks, or we could do a wait and see, for example, that's what pre natal informed consent could look like. But, you know, in those kinds of cases, looks like you know, listen, due to your wonky blood pressure, we're gonna do see tomorrow. That's what it tends to look like instead. And what it's supposed to look like in l&d, or in a moment where the potential intervention is imminent, is I'm looking in your eyes, and I'm saying, so, your Labor's stalled for x hours. And this is what we perceive it to be the possible reasons for that, or, you know, the fetal heart monitor is indicating maybe some distress for your baby. And so our option, what we could do now is, and so then you, you know, you say what the options are including, so if I'm the provider, and I would like to move you to C section, then I can say, so one way that we could deal with this is delivering the baby surgically right now. And then another way is, we could, I don't know, bring on some Pitocin. Or we could do nothing, because informing the patient has to involve telling them about what doing nothing would look like, yes, their option to do nothing is one of the most is the most important alternatives. Absolutely.

And so if we do nothing, here's what here's some of the risks and benefits of that. Here's the way we anticipate this might unfold if we do nothing, and some of the risks and benefits of that. And here's there are other alternatives. In the end, you know, you're you have a right to be told the material risks and benefits of those options, not everything, because as you know, there's lots of subtle risks that can be involved in various interventions. Trisha, do you have something you want to say on that point?

How about how does it come into play in the moment when the baby is truly at risk? And we're talking about not just the mom, but you know, what we were describing before with the VBAC cases and this other human now having rights? How does it come into play in that moment? What does informed consent look like when a baby's heart rate is in the 60s in the mom needs to, you know, get that baby out ASAP?

Right where it where it would be advisable for the baby to be born quickly, or whatever. Okay, so let me just finish walking through what informed consent is supposed to look like and then we will apply it to that situation. So informed consent supposed to look like here's your diagnosis, your clinical situation, here are the options that we have for addressing your clinical situation, including the option of doing nothing. Here are some of the risks associated with each of those. The first prong is inform. All right, inform, here's your diagnosis. Here are your options. Here are the risks and benefits of your options. And inform also means Do you have any questions? I will answer all your questions so that you are fully informed. Now prompt to advise, if you have advice, sometimes the provider might actually be neutral with with regard to you know, when there's when there's they don't have a strong opinion, you could do this prenatal test or not, you know, whatever. I don't have advice. Here's the information now. And so then you can move right to the third prong, which is support, what do you want to do, I'm here to support you in making your best decisions, which may or may not be what I want. So again, prompt to his advise. There might be situations where there is no advice, but there will be lots where there is I think you should do X. I think that this would be the safest course of action for you and your baby at this moment. But then you must under the law of informed consent, go to prong three which is support and what that means is support that patient and making their best decision and that includes the decision to go against your advice and that the provider has to live with their data. Comfort over that risk, including if the baby is in distress. So now let's get to Trisha question. Well, what is the baby's danger? Yeah.

And a quick comment on those three steps, it seems that in practice, most often step one is minimized or not even there at all. In step two is put into action. And step three never happens.

Right? I mean, I think that the reason that I've separated it out into three prongs, so inform, advise and support. And I think this is helpful when I'm talking to providers is that what usually happens is inform and advise are conflated. Right. So the the only information that's really provided is that which aligns with the providers advice, it's their recommendation isn't a recommendation or recommendation, right? Because it cognitively they're trying to lead you to that. But if they understand that's why this, this three prong tool can be helpful for them, because they need to understand that prong one is all the information, including that which has nothing to do with my advice for you. And now I do have a moment where I get to share my advice, right, I can do that. And now I move to this third prong which is I'm going to support you in making this decision. It recalibrates the ego of the provider within the whole process, right. Like I have a place in it for sharing my advice, but it's not about me, it's not about me. Does that make sense? And do want me to go ahead and apply it to the emergent baby that makes it makes great sense. It just seems like it's it never happens, which is why you percent step to 90%. The other thing is, how often are they speaking and rhetoric like, Look, I just don't like what I see here. wonky labs, your labs are wonky, right? That's normally how they speak to people. Yeah, I you know what, I just have to say, if it were my baby, if you were my daughter, if you were my wife, if you were my sister, I would have the C section. Well, you haven't given me any information that's still say, trust me, trust me to make the decision for you. It's Frederick. Yeah, it's rhetoric. And yeah, it's not information. And so we don't like when the heart rate goes down. Right. Thank you. I'm not asking what you like, can you get tell me exactly what that means?

And, you know, I think this might be a moment to pop in here that, you know, to come back to this point that you made earlier, I think, Cynthia about how it's not about mode of delivery, whether women come out traumatized, right, it's not about whether it was a vaginal birth, or a C section. And, you know, as Lily and George, you know, as their experience makes clear. And the studies show that what makes the difference in what whether people come out of giving birth traumatized, is not mode of delivery, whether you know, but whether they felt in control through whatever happened, it's not even was there an emergency or not, it's whatever came up, because things are going to come up. Childbirth is unpredictable, and chaotic. Whether they were still treated as the central agent of their care is not about in control of nature, or nature being in control. It's about in control of this body, in the sense of respected as the owner of this body. That is what and so, you know, on this whole informed consent prong very often what, you know, the women who come to me, the moment that they break down weeping, that sort of I have the storm of their trauma is actually the moment when they had to make a decision, like the decision to accept the induction, that decision to accept the C section, and where they remember the helplessness of the feeling where they're not being given logic, they're not being given reasons, they're being given sort of emotional manipulation. There's a hand that their babies in danger, but they're not being explained why, how exactly is my baby in danger? What's the evidence of that? And so they're making these decisions from a really uneasy place, you know, like, where they don't really trust what's going on here, because they're not being given information that that is trustworthy. So, you know, and so let's talk about this situation. Because very often, I mean, Lord knows, I've given talks on this topic to reproductive rights organizations of people that will march in the street for abortion rights, and they will raise their hand in that room, and they'll say, Yeah, I know about informed consent. But what if the baby's a danger? You know, and I think it's worth unpacking a little bit of our assumptions here. Because, you know, when we say, well, what if the baby's in danger? There's sort of this assumption that, all right, this idea of maternal fetal conflict, right, this idea of Don't you care about your baby, there's this idea that a woman is aligned with her baby's interests, as long as she is obedient to whatever provider is standing in front of her. But the moment she asks questions or resists the recommendation of that provider, she is no longer in alignment with her baby, but the provider is. Now that is a very problematic assumption about a provider that just walked into the room and a woman that's been gestating this baby for nine months in her body. Right. So but that's where we go and the reason that we go there is misogyny. So I think that that is worth recognizing. Right. And, and that we might play a role in it. Oddly, women female obstetricians later said it. That's the part that's fascinating to me.

I was saying, you know, I was shocked that the birthing doctor who delivered my child was not only a woman but also a woman of color and looking back on it I I couldn't, I couldn't I could not grasp how somebody could treat a another woman the way that she did, let alone somebody who's statistically has shown to, to experience a lot more abuse in the medical system just due to their race. I just shocking. Beyond shocking. And it must it's got to be a power trip. It has to be have to, I have to say that my assumption would be that yes, yes, it is, after contemplating that phenomenon for a very long time.

It's about power. And there, you know, there's a power dynamic that that is at play, you know, the way that I see it with female obese, it's like they were taught to put on the penis of power with their white coat. And they were where they were at into the room, you know, and so, but, but to get back to this issue of the what if the baby's in danger? So first, we have to question our assumptions of who's looking out for the baby. Right. And then, you know, I think you can, a cogs 2010 I think it was statement ACOG has a couple of great statements on maternal decision making that reflect what ethics you know, what, what they're supposed to do ethically. But, you know, again, it's not what's happening in practice, and a cogs not doing enough to close that gap. But one of the things that it says in either it's 2010, or 2016 statement on this is, why shouldn't we foresee sections on women because of prognostic uncertainty, right? They just don't know that your baby is in danger. EFM is wrong 99% of the time, on healthy, you know, when it comes to actually predicting fetal distress, or cerebral palsy 99% of the time, there's some articles written by a Texan lawyer named Thomas sartwell, sar T W. E, Ll. E on the science of the electronic fetal monitor, because he spent, you know, 60 years defending doctors and hospitals, you know, with regard to this machine and read every single study, and he said, you know, you know, he explains, you know, that these electronic fetal monitor machines were 10,000 were disseminated into American hospitals before any studies that did come from the industry, were released. And ever since all the studies have shown that for normal pregnancies, that machine is not helpful for protecting babies at all, the only thing that machine really does is it's a labor saving device. You don't need as many nurses to go around. And actually, it's it has no improvement compared to intermittent fetal monitoring. It's not like we want no fetal monitoring of childbirth. But the continuous fetal monitoring has no advantage over the intermittent fetal monitoring, or Doppler. But a huge, a huge detriment to the mother, it massively spikes this area infection rate, because the whole point of the thing is to act if there's a blip, the problem is that the blips don't accurately reflect fetal distress. And so as as Thomas sartwell said, in a podcast I did with him years ago, if you had a smoke detector, that was wrong, 99% of the time when it went off, you would get rid of that machine, and you would recognize that it does not work. So why don't why aren't we doing that with the EFM? So the one of the biggest things to remember with regard to fetal distress as prognostic uncertainty, and then we get to well, what if we're really quite confident? And what if the woman refuse declines? What if What if she declines in intervention and the baby is going to die? Right, let's let's just look at it right there, what are the babies actually going to die, and the woman declines at intervention, which of course, this is not a hypo, this is not a thing in the world, I've worked with 1000s of women around informed consent, I've yet to meet the woman who wouldn't get cut open without anesthesia for her baby, as if she's inclined to put her baby at risk. Just like that's not a thing. That's not a thing, assumption.

But even, even if the baby is at risk, and her decision puts the baby at risk, we have two options here, right? We either decide that, in that situation, we respect the bodies of pregnant people, because at the end of the day, we respect physical autonomy, or we don't. And if we decide that we don't, because we care so much about the risks to babies, then we have decided to turn women into fetal containers, then then all you are as a fetal container. And the moment someone outside your body is concerned for your baby, they can do whatever they want to your baby. And you took that on by choosing to become pregnant. And then we're in a very different kind of society, right? So that's why you know, at these moments where we actually, it's worth thinking deeply about what is at stake when we say who's looking out for the baby, and what are we going to do with the babies in distress, because the implications for that really, are very significant. And in fact, right now, we're operating in obstetrics under the assumption that if the baby is in distress, the doctor can do whatever the doctor want, or if there's a perception of fetal distress, which again, is very problematic and life of the electronic middle monitor. If there's a perception of fetal distress, the doctor can do whatever they want to to the woman's body. And that is wrong, because it means that pregnant women are a completely different kind of citizen and person than everybody else in our society. And so therefore, I would say any judge that has made that kind of decision to force a C section, that's just bad law, right? It's just bad law. What I'm arguing now in the cases I'm filing for obstetric violence and informed consent lnd is that informed consent is a different standard of care than other kinds of medical standards. When that guy said to me, I doubt there's anybody else that practices like this. And when the Joint Commission or the medical board right back to say it looks like standard of care, with air set, what they're pointing to is the fact that normally in medical areas of medical negligence or medical malpractice, the question of whether a provider committed negligence or did wrong, comes down to what what does every other doctor, do you know what I mean? The standard of care is really sort of defined by the industry, how do you cut? How do you set a leg, a broken leg, you know, I mean, we do what everybody else does. But the law of informed consent is different. It's different as a medical standard to other ones. And I recently had an opportunity to talk about this with a guy named George Anis, who's a professor at Boston University, and he's an expert on informed consent, I mentioned him Sue Lilly, and he, he gave a talk on informed consent. And what he explained was that informed consent is different, because it is a bio ethical obligation, not like a medical technique, if you will, it rests on every single provider, they have an obligation to respect and and fulfill informed consent toward every single one of their patients, whether or not any other doctor is doing. So they have that obligation, just by virtue of being a doctor practicing, it must be what they do. And so that argument is what you need to understand and be led to understand and that what what all of these providers need to understand. And so what we're doing here, therefore, it's like, it's like, it's so radical, right? And it's a little overwhelming sometimes because it's such a mountain of misbehavior that, you know, but what we're doing is saying, Listen, it's, it reminds me of a case of I can just babble on for one more second that I'm going to draw upon from like, 19 teens. And it from New York Harbor, it was like a, there was this great, there was an old judge named judge Learned Hand, it's a great name for a judge. And I think it was Judge Learned Hand who it was, it was a case where there were like tugboats in the New York Harbor. And the question was whether tugboats had to have radios, you know, in order to avoid crashes and stuff like that. And at this point, it was not yet standard of care for all tugboats to have radios. And the judge said, sometimes you cannot let industry set its own standard, they're saving their 20 bucks on that radio, but it would make a huge difference to the crashes happening in this harbor. You know, so and this is one of those cases where we cannot let industry set its own standard because the standards that have been set in obstetrics through no one's you know, Mal intent, but just through momentum over the last century, and the fact that feminism has not done its work on childbirth and labor and delivery, is that nobody's respecting informed consent. And so it's like, what we're trying to do is like, tilt that first domino that then makes the whole chain of dominoes fall back in the right direction toward respecting the rights of patients.

Can you define you had mentioned informed consent is a bio ethical obligation? Can you just explain that?

Yeah. So there's law and ethics, right, that that are two sorts of codes that we live by in the world, and hopefully, law aligns with ethics, sometimes it does not. But ethics is its own set of obligations, right. I as a lawyer have obligations of prophetic professional ethics that are a little bit different than my legal obligations, and they're, they both rests on me, I must fulfill both. And same with doctors. They have legal obligations, and they have ethical obligations, and often they align. So their obligation of informed consent. So here in Oregon, for example, we have a statute that says the doctors must perform informed consent. It says all the things I laid out earlier, risks, benefits alternatives. The patient makes the decision. That's a legal obligation put on them by statute. But even if that wasn't there, they have a bioethical obligation to do that, that rests on them because they are doctors who swore into the Hippocratic Oath code.

And how about nurses?

Also, nurses also have bioethical obligations. I have three lawsuits pending here in Oregon for different forms of obstetric violence. One is a a nurse that held a didn't like a teen mom didn't like teen moms wanting a natural birth and she, after lots of bullying, clamped a nitrous oxide mask over my clients face and held it over to her until she started struggling. Oh, yeah, Lily, just stuff happens. And then the other two are women who are missing not as dramatic or violent as either Lily or my teen client. But women who were misinformed and misled into C sections want a C section only for breach policy. I'm so excited to be suing a hospital over a C section only for breach policy, I cannot even tell you. Because guess what hospital policies do not Trump human rights, you don't get to make up a Hollis hospital policy that overrules my constitutional right to refuse surgery, right. And then another one where my client was, you know that that's the two mildly elevated blood pressures where they said, See, you know, very strong recommendation C section tomorrow. And no diagnosis, no infirmities, are there any risks or benefits to inducing 37 weeks? "Babies just do better out than in" says the CNM.

That's rhetoric. Yeah, that coalition. Now when you take that to court is that coercion?

No, coercion would be coercion, that's misinformation, right? That's misinformation. Coercion is when you try to replace their will with yours. Same with duress, when you apply pressure in a way that attempts to replace their will with your so coercion would be guess you don't care if your baby's gonna die. And I might call DHS on you. And like threats, or that sort of stuff gets into coercion. But these are cases where the women, you know, were rendered helpless. And, and then both cases, the anesthesia failed on the C section table. Turns out, that's very common. And then there were also just lasting harms of the C section. So it's like, you know, a lot of that what I'm interested in with the abuse of C section is the, like we're talking about, they don't talk about the risks that they don't want you to care about. You know what I mean? Because they want you to get to the advice. And so the downstream risks of C section are really never rarely discussed. And if they are there, they're generally talked about in terms of your options for how you give birth next time. So yeah, I've got those lawsuits pending. And I'm excited. And you guys have one pending now.

Me, we have not sued Yale, we have confronted Yale and yeah, and what Yael has shown because Lily and George wanted to see how far we could go in a non litigated way. And and they really were hopeful that those guys were going to come to the table and reflect, but they didn't they came to the table to tell us. We're sorry, we didn't tell you what we're gonna do to you before we did it. If we're sorry about anything, it's that. Am I right, you guys? Is that how you? What did you hear them to say?

Oh, yeah, they were like, well, we're sorry, but we're sorry.

You feel this way? Not we're sorry. We did anything wrong.

We're really sorry. You're upset? Right?

Yeah. Yeah, baby care that?

I'm sorry that you experienced it that way? Because?

Yeah, exactly.

We're fully exploring our options for holding yourself fully accountable here. Because how do they not understand that physically holding down another human being is not okay. How do they not understand that? It's amazing. How can they possibly find some way to justify that, because they think the ends justify the means. That is our cultural story about childbirth, the ends justify the means period. Let's all forget what happened before that live. And remember, when they say All that matters is a healthy baby. What they really mean is live baby. So yeah, I mean, with Yale, what really matters there is the fact that they're a teaching hospital. And they used Lily at the birth of Lillian George's baby to teach abuse. And then they turned around and said, everybody else's music, so we're going to keep doing it this way. And for that they must be stopped.

I understand that it's scary to take on such a giant, giant beast in the medical world. But it has to happen, because I mean, it's 2021. We can't keep letting this happen. We can't keep saying that, you know, women, women are less important. Women creating humans out of thin air are less important. That money and time. And these giant corporations making their cash is more important than the well being of a human being.

Yes. And one more point on Yale because I think it's not unique to Yale is that the first response, we actually got to our letter, said it because I actually I directed it toward a doctor in a midwife at Yale who I knew did research in the area of respectful maternity care. And so I thought that they would care and be able to direct this toward others who would, but they wrote back to say, you know, we're sorry. Oh, you get it seems, you know, we've got two different wings, you know, you know, and it seems like you didn't give birth in the gentle birth wing. You gave birth in the violent birth wing. And it's like, Are you Are you kidding me? Are you effing kidding me? And yet, a lot of you know, we've heard about this. You already did everything sweet or nonviolent birthing suite. That's where we don't hurt you. Everywhere else. We do hurt you.

They didn't know. They did admit they have a violent wing. Well, exactly. Well, Oh, yeah. I mean, do you have a difference?

And no, it's like they're saying, I didn't want that. Oh, you didn't want that? Oh, yeah. No, too bad. You really should have known if you didn't want that kind of

Earth, you should have you had to be in a special room. We have a special room where we where we don't hurt women as much what? No, every one of your rooms needs to be around where you uphold your patients, right? So the fact that they're distinguishing them makes it right, but they acknowledged that they hurt women as well, and understand anytime you're looking at a hospital that has a home birthing suite or any kind of that is all that they are Trying to hold out is that there's one area of the hospital where we might treat you a little bit more like a human being. But no, folks, every single room of your hospital needs to treat every single person like a human being, period. It's victim blaming. And that of course, is like it's just one form. And generally, when women reach out about these experiences of trauma, the responses are some form of victim blaming anything from you chose the wrong wing of the hospital to you know, women are often disappointed when their broken bodies break and I'm sorry, your your feeling bummed about that? No, that's not what why we're bummed. We're not bummed because of our bodies. In your case, they can say that, but for a lot of couples, they don't have the presence of mind to recognize me abuse when it's happening. You guys did, most people don't they go through their birth, they just want to get to the end. They're holding their breath. They're praying to God, please let us be okay. Okay. We can freeze when we're just like, what's going on, you can't take it all in sometimes.

We also go into survival mode. Like I said, during that situation, me and George, were definitely in survival mode. And then you know, as our stay at the hospital, which was three days, progressed, George contracted COVID. And we just kept on going into survival mode. By the way, they also would not give him Tylenol or Advil for his headache, and fever, they made him leave the hospital, walk down to Walgreens, and then collect.

But besides, it wasn't a picture of a bill running for him a tab for him. Yes, exactly.

And, you know, when we finally got in the car to go go home, it was the first time that we kind of exited that survival mode. And I just remember breaking down, and almost vomiting and just, I'm sitting there with my child, my firstborn child. And it I felt so disconnected. And I felt so physically ill from the experience, and it was just, it was probably one of the worst single moments of my life, that experience going home and being in shock and being like, what just happened? And I ruined forever now, am I going to be a horrible mother now, because I can't connect to my child because somebody treated me like garbage. And I mean, everything is different now. And I have a wonderful relationship with my son. But the fact that that's legal is the fact that it's not taking into consideration how a woman's birth experience impacts everything else in her life from that day forward. Is not taking into consideration is crazy. Yeah.

If you're so concerned about the child, take care of the mother. Take care of the mother because yes, she's gonna be raising that details.

What it does you guys invites us to reclaim the phrase, all that matters is a healthy mother and baby. Yes, you're damn right. All that matters is a healthy mother and baby. So let's talk about healthy mother. Let's talk about healthy baby, you know, because if we're really, if we're being honest about healthy mother and healthy baby, healthy mother's whole health, it includes postpartum mental health, duh, right. So if you're, if you actually want to healthy mother, you're going to make sure that mother doesn't walk out to her car and vomit from trauma. That's not a healthy mother. And if you want a healthy baby, you're going to make sure that that baby has a mama that's ready to bond with him, because that is imperative to baby health. You know, that baby needs a healthy mama that's ready to fully bond with that baby, because she needs to be able to fully bond with her baby in order to meet all that baby's needs. So yes, all that matters is a healthy mother and a healthy baby. And you cannot get there by treating that mother like they are nothing like they're a piece of meat like Lilly said it because she's not going to come out of that as a healthy mother and you're not going to get your outcome of a healthy baby. So we have to keep fighting until we get law that actually matches and reflects our human rights and but the only way to do that is to continue to advocate.

Thank you for joining us at the Down To Birth Show. You can reach us @downtobirthshow on Instagram or email us at Contact@DownToBirthShow.com. All of Cynthia’s classes and Trisha’s breastfeeding services are offered live online, serving women and couples everywhere. Please remember this information is made available to you for educational and informational purposes only. It is in no way a substitute for medical advice. For our full disclaimer visit downtobirthshow.com/disclaimer. Thanks for tuning in, and as always, hear everyone and listen to yourself.

This makes me think of a really dark German joke, which is how a lot of German jokes are. But there's this joke. I mean, it's one of the languages I studied my I have a great affection from Germans and the language but anyway, this is a joke that this makes me think of because this is how I think healthcare is done in this country. There's a man knocking on the doctor's door at 6pm and he has a knife in his back. And he's like, please help me I have a knife in my back and the doctor is going I'm closing at six o'clock. Go. I have a knife in my back. Help me please. I have a gun. You have to hit me with a knife. No, go away. I told you I'm back in the morning but this is urgent. I have a knife. The doctor says get in here. He pulls the knife out of the back, sticks it in the guy's eye and goes the eye doctor is open till late go. That's how I view healthcare in the United States. You have postpartum depression because of the birth that I attended. Not my problem. Yeah. Wow. Take it to a therapist.



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About Cynthia Overgard

Cynthia is a published writer, advocate, childbirth educator and postpartum support specialist in prenatal/postpartum healthcare and has served thousands of clients since 2007. 

About Trisha Ludwig

Trisha is a Yale-educated Certified Nurse Midwife and International Board Certified Lactation Counselor. She has worked in women's health for more than 15 years.

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